EVIDENCE RULES!

Question 1

RELEVANCE

Answer 1

Evidence is relevant if it has any tendency to make a material fact more or less probable.

Question 2

Similar Occurrences - PLAINTIFF’S ACCIDENT HISTORY

Answer 2

A plaintiff’s accident history is inadmissible as it only tends to show he is accident prone; however, prior accidents are admissible if the cause of injuries are at issue.

Question 3

Similar Occurrences - SIMILAR ACCIDENTS CAUSED BY SAME EVENT OR CONDITION

Answer 3

Past accidents involving defendant may be admissible if they occurred under substantially similar circumstances, and for the purposes of (1) showing existence of a dangerous condition, OR (2) causation of the accident, OR (3) prior notice to defendant.

Question 4

Similar Occurrences - INTENT IN ISSUE

Answer 4

If intent to discriminate is at issue, then prior conduct may provide inference of intent on later occasions.

Question 5

COMPARABLE SALE OF PROPERTY

Answer 5

Selling price of other similar property, in the same location and time, is some evidence of value of property in issue.

Question 6

HABIT

Answer 6

One’s habit is admissible to show how he acted on the occasion at issue; repetitive response to a particular set of circumstance that must be frequent and particular.

Question 7

INDUSTRIAL CUSTOM

Answer 7

Evidence of how others in the same industry have acted may be admitted as some evidence of the appropriate standard of care.

Question 8

Policy Based Exclusions - LIABILITY INSURANCE

Answer 8

Existence of a party’s insurance is inadmissible for proving fault or absence thereof. However, it may be admissible for (1) proof of ownership/control, OR (2) witness impeachment.

Question 9

Policy Based Exclusions - SUBSEQUENT REMEDIAL MEASURES

Answer 9

Subsequent remedial measures are inadmissible unless to show (1) proof of ownership/control, or feasibility of a safer condition - if either is disputed by the defendant.

Question 10

Policy Based Exclusions - SETTLEMENT OF DISPUTED CIVIL CLAIMS

Answer 10

Settlements of disputed claims are inadmissible to show liability: (1) fact of settlement, (2) an offer to settle, and (3) statements of fact made during settlement talks. However, admissible to impeach witness on the ground of bias.

Question 11

Policy Based Exclusions - PLEA BARGAINING IN CRIMINAL CASES

Answer 11

An offer to plead guilty and withdrawn guilty pleas can never be used against the defendant based on the same facts.
A plea of nolo contendere can never be used in later civil litigation based upon the same facts. All statements of fact made during plea bargaining can never be used. HOWEVER, a guilty plea NOT withdrawn is admissible in civil case under the rule of party admission.

Question 12

Policy Based Exclusions - OFFER TO PAY HOSPITAL OR MEDICAL EXPENSES

Answer 12

A party’s payment or offer to pay accident victim’s hospital/medical expenses is inadmissible to prove liability. [NC] North Carolina extends this rule to include other expenses such as lost wages and property damage.

Question 13

Character Evidence - DEFENDANT’S CHARACTER (CRIMINAL)

Answer 13

A defendant may introduce a relevant trait by reputation or opinion testimony of a witness, but the witness may never testify to specific acts for showing character. Doing so opens the door to rebuttal by the prosecution.

Question 14

Character Evidence - PROSECUTION’S REBUTTAL OF DEFENDANT’S CHARACTER (CRIMINAL)

Answer 14

The prosecution may rebut by (1) cross-examining the defendant’s character witness, but the witness may never testify to specific acts of defendant, or (2) by calling its own reputation or opinion witness to contradict.

Question 15

Character Evidence - VICTIM’S CHARACTER IN SELF DEFENSE CASES (CRIMINAL)

Answer 15

A criminal defendant may introduce evidence of a victim’s violent character to prove victim’s conduct in conformity as circumstantial evidence that victim was the first aggressor by reputation or opinion - no specific acts are allowed. The prosecution may rebut with evidence of victim’s good character AND may prove defendant’s violent character. [NC] In North Carolina, victim’s character does not open the door to defendant’s character.

Question 16

Character Evidence - DEFENDANT AWARE OF VICTIM’S VIOLENT REPUTATION IN SELF DEFENSE CASES (CRIMINAL)

Answer 16

If defendant, at the time of the alleged self-defense, was aware of the victim’s violent reputation or prior specific violent acts, such awareness may be proven to show defendant’s state of mind (fear) to help prove that he acted reasonably in responding as he did to the victim’s aggression.

Question 17

Character Evidence - VICTIM’S CHARACTER IN RAPE CASES (CRIMINAL AND CIVIL CASES)

Answer 17

In all cases, where defendant is alleged to have engaged in sexual misconduct, the defense may not admit (1) opinion/reputation evidence of victim’s sexual propensity, or (2) evidence of victim’s specific sexual behavior.
However, the defense may admit evidence of (1) specific sexual behavior of victim to prove that another was the source of semen or injury to the victim, (2) victim’s prior sexual activity with defendant If defense of consent is asserted, OR (3) where exclusion would violate the defendant’s due process rights (love triangle).

Question 18

Character Evidence - CHARACTER EVIDENCE IN CIVIL CASES (CIVIL)

Answer 18

Only admissible where character is essential element of claim or defense; (1) negligent hiring or entrustment in tort, (2) defamation, libel, slander, and (3) child custody disputes.

Question 19

Defendant’s other crimes for NON-CHARACTER PURPOSES (CRIMINAL) - GENERAL RULE

Answer 19

Defendant’s other crimes or specific bad acts are NOT admissible during the prosecution’s case-in-chief if the only purpose is to suggest that because of the defendant’s bad character, he is more likely to have committed the crime. However, admissible to prove motive, intent, mistake, identity, or common scheme or plan. (MIMIC)

Question 20

Defendant’s other crimes for NON-CHARACTER PURPOSES (CRIMINAL - MOTIVE EXCEPTION

Answer 20

A defendant’s prior crime is admissible to prove defendant had motive to commit the charged crime.

Question 21

Defendant’s other crimes for NON-CHARACTER PURPOSES (CRIMINAL) - INTENT EXCEPTION

Answer 21

A defendant’s prior crime is admissible to show defendants state of mind (intent) to commit the charged crime.

Question 22

Defendant’s other crimes for NON-CHARACTER PURPOSES (CRIMINAL) - MISTAKE OR ACCIDENT EXCEPTION

Answer 22

A defendant’s prior crime is admissible to show defendant didn’t make a (mistake) in committing the crime cInharged.

Question 23

Defendant’s other crimes for NON-CHARACTER PURPOSES (CRIMINAL) - IDENTITY EXCEPTION

Answer 23

A defendant’s prior crime is admissible to show his identity (modus operandi) if it is distinctively unique.

Question 24

Defendant’s other crimes for NON-CHARACTER PURPOSES (CRIMINAL) - COMMON SCHEME/PLAN EXCEPTION

Answer 24

A defendant’s prior crime is admissible if it was part of the common scheme or plan; that is the same transaction

Question 25

Defendant’s other crimes for NON-CHARACTER PURPOSES (CRIMINAL) - METHOD OF PROVING PRIOR CONVICTION

Answer 25

The prosecution can prove past crimes by (1) showing defendant was convicted, OR (2) evidence (witnesses) that prove that crime occurred through a conditionally relevancy standard - produce sufficient evidence from which a reasonable juror could conclude that defendant committed the crime.

Question 26

Defendant’s other crimes for NON-CHARACTER PURPOSES (CRIMINAL) - METHOD OF PROVING PRIOR CONVICTION (NC DISTINCTION)

Answer 26

(NC DISTINCTION) - (1) CAN NOT prove by conviction, (2) upon request, the prosecution must give pretrial notice of intent to introduce MIMIC evidence, (3) Court must weigh the probative value against prejudice and give limiting instructions, and (4) allow in civil cases if relevant to a non-character purpose such as fraud or assault.

Question 27

Defendant’s other crimes for NON-CHARACTER PURPOSES (CIVIL AND CRIMINAL) - DEFENDANT’S PRIOR SEXUAL MISCONDUCT TO SHOW PROPENSITY IN SEX CRIMES

Answer 27

In sexual assault or child molestation cases, the defendant’s prior specific acts of sexual misconduct is admissible in plaintiff’s or prosecution’s case in chief to show defendant’s propensity for sex crimes. (NC CISTINCTION) - only allowed if same victim in the past or similar offense close in time.

Question 28

Authentication of Writings - AUTHENTICATION RULE

Answer 28

If relevance of a writing depends on its source, it must be authenticated by showing that the writing is what it purports to be (genuine). If no authentication is required, foundation must be made for the document to be admissible.

Question 29

Authentication of Writings - CONDITIONAL RELEVANCY STANDARD

Answer 29

A document is admissible if the court determines there is sufficient evidence from which a reasonable juror could conclude the document is genuine.

Question 30

Authentication of Writings - METHODS OF AUTHENTICATION

Answer 30

A document can be authenticated by (1) witness’s personal knowledge, (2) proof of handwriting, (3) ancient document rule, and (4) solicited reply doctrine.

Question 31

Authentication of Writings - WITNESS’S PERSONAL KNOWLEDGE

Answer 31

A document can be authenticated by a witness’s personal knowledge by testifying she saw the signing or writing.

Question 32

Authentication of Writings - PROOF OF HANDWRITING

Answer 32

Proof of handwriting by (1) lay witness’s opinion that X wrote the document on the basis of familiarity with x’s handwriting as a result of experience in normal course of affairs, (2) expert comparison, or (3) jury comparison

Question 33

Authentication of Writings - ANCIENT DOCUMENT RULE

Answer 33

Authenticity may be inferred by circumstantial evidence by way of the ancient document rule if document is (1) at least 20 years old, (2) facially free from suspicion, and (3) found in a place of natural custody.

Question 34

Authentication of Writings - SOLICITED REPLY DOCTRINE

Answer 34

A document can be authenticated by evidence through the solicited reply doctrine if a reply was received in response to a prior communication to the alleged author (P mails contract to X and later receives acceptance signed by X).

Question 35

Authentication of Writings - SELF-AUTHENTICATED DOCUMENTS

Answer 35

A document is presumed authentic, and thus, there is no need for foundation testimony if document is (1) an official publication, (2) certified copies of records on file in a public office, (3) newspapers/periodicals, (4) trade inscriptions and labels, (5) notarized documents, and (6) commercial paper.

Question 36

Authentication of Writings - AUTHENTICATION OF PHOTOGRAPHS

Answer 36

Witness may testify on basis of personal knowledge that it is a fair and accurate representation of objects.

Question 37

Best Evidence Rule - BEST EVIDENCE GENERAL RULE

Answer 37

A party who seeks to prove the contents of a writing, sound recording, x-ray, or film, must (1) produce the original, or (2) provide acceptable excuse for its absence.

Question 38

Best Evidence Rule - WHEN BEST EVIDENCE RULE APPLIES

Answer 38

The best evidence rule applies when a party is seeking to prove the contents of a writing. Typically occurs when (1) writing is a legally operative document, or (2) witness testifies to fact he learned solely from writing. HOWEVER, it does NOT apply when witness with personal knowledge testifies to a fact that exists independently of a writing which records the fact.

Question 39

Best Evidence Rule - WHAT QUALIFIES AS AN ORIGINAL WRITING

Answer 39

Original writings include (1) whatever the parties intended as original, or (2) accurate duplicate of original.

Question 40

Best Evidence Rule - WHAT QUALIFIES AS ACCEPTABLE EXCUSE FOR ABSENCE OF WRITING

Answer 40

Proper excuses include (1) lost or cannot be found with due diligence, (2) destroyed without bad faith, or (3) cannot be obtained with legal process. Court must be persuaded by preponderance that excuse is established. If so, secondary evidence is then admissible (witness’s memory of writing or a handwritten copy).

Question 41

Best Evidence Rule - ESCAPE OF BEST EVIDENCE RULE

Answer 41

Best evidence rule not applicable if (1) voluminous records can be presented through chart/summary so long as originals are admissible, (2) certified copies of public records, or (3) collateral documents (I have a license).

Question 42

Witnesses - COMPETENCY OF WITNESS

Answer 42

A witness is presumed competent if he (1) has personal knowledge, and (2) takes an oath or affirmation.

Question 43

Witnesses - DEAD MAN’S STATUTE

Answer 43

Although a witness is not generally incompetent because he has a direct legal interest in the outcome, dead man’s statutes provide that, in CIVIL actions, an interested witness is incompetent to testify in support of his own interest against the estate of a decedent concerning communications or transactions between the witness and decedent.

Question 44

Witnesses - DEAD MAN’S STATUTE (NORTH CAROLINA DISTINCTION)

Answer 44

NORTH CAROLINA DISTINCTION - Under North Carolina’s dead man statute, an interested witness is incompetent on if the testimony concerns an ORAL communication between witness and decedent. However, an interested witness may testify against the decedent’s estate concerning the identity of operator of a motor vehicle.

Question 45

Witnesses - LEADING QUESTIONS

Answer 45

A leading question is one that (1) suggests the answer, or (2) provides unevenly balanced alternatives. Leading questions are not allowed on direct, but allowed on cross. However, they are allowed on direct for (1) preliminary introductory matters, (2) youthful or forgetful, (3) hostile, or (4) adverse party or under control of.

Question 46

Witnesses - REFRESHED RECOLLECTION WITH WRITING

Answer 46

A forgetful witness may be shown a memorandum/tangible item to refresh memory, but may not read from it. Adversary has right to (1) inspect the memo, (2) use it on cross-exam, and (3) introduce it into evidence.

Question 47

Witnesses - PAST RECOLLECTION RECORDED (HEARSAY EXCEPTION)

Answer 47

Under exceptions for past recollection recorded, witness may read a writing into evidence if (1) refreshed recollection fails, (2) had personal knowledge at former time, (3) writing was made/adopted by him, (4) making or adoption occurred while event was fresh in mind, and (5) can vouch for accuracy of writing when made/adopted.

Question 48

Witnesses - OPINION TESTIMONY OF LAY WITNESS

Answer 48

A lay witness’s opinion is admissible if it if (1) rationally based on his perception (personal knowledge), and (2) it is helpful to the jury in deciding a fact (“he was drunk/speeding/insane/emotional,” handwriting”

Question 49

Witnesses - OPINION TESTIMONY OF EXPERT WITNESS

Answer 49

An expert may testify if (1) he is qualified (2) on the subject matter, (3) he gives reasonable degree of probability or reasonable certainty, (4) his testimony is relevant, and (5) sufficiently reliable.

Question 50

Witnesses - EDUCATION/EXPERIENCE REQUIREMENTS FOR EXPERT WITNESS

Answer 50

(NC DISTINCTION) With medical malpractice, expert must be (1) specialist in same field as defendant, and (2) during 1 year prior to incident, spent the majority of their time in clinical practice or worked as a med school professor. Proper subject matter: scientific, technical, or specialized knowledge that is helpful to the jury. Probability/Certainty: (1) personal knowledge, (2) evidence in trial recorded by hypothetical questions, OR (3) facts outside record if the type is reasonably relied upon by experts in that field in forming opinions. Relevance: relevant to the issue at hand. Reliable: (1) test of principles, (2) rate of error, (3) acceptance in field, and (4) peer review and publication. (NC DISTINCTION) Presumption of reliability. However, if novel theory, court will consider if expert (1) uses established technique, (2) has a background in this technique, (3) uses aids to help the jury, and (4) engaged in independent research in using the technique.

Question 51

Witnesses - TREATISE IN AID OF EXPERT TESTIMONY (HEARSAY EXCEPTION)

Answer 51

Under the hearsay exception, an expert may use a treatise (1) on direct of party’s own witness to read relevant portions of treatises, periodical, pamphlet as substantive evidence if established as reliable authority; (2) on cross of opponent’s witness to read into evidence to impeach and contradict opponent’s witness as substantive evidence.

Question 52

Witnesses - OPINION WITNESS (LAY OR EXPERT) ON ULTIMATE ISSUES

Answer 52

Opinion testimony of an ultimate issue is permissible so long as all other requirements for opinion testimony are satisfied, including that the opinion is helpful. Generally, not helpful for witness to give opinion in legal jargon. In CRIMINAL, ultimate issue is a proper objection if the expert states that the defendant did/did not have the required mental state.

Question 53

Witnesses - RIGHT TO CROSS EXAMINATION

Answer 53

A party has a right to cross-examine any opposing witness who testifies at trial so long as the cross is on matters within the scope of the direct-examination, or on matters that impeach the witness’s credibility.

Question 54

Witnesses - RIGHT TO CROSS EXAMINATION (NC DISTINCTION)

Answer 54

(NC DISTINCTION) Not limited to scope of direct-exam; can question anything relevant.

Question 55

Witnesses - BOLSTERING OWN WITNESS

Answer 55

One may not bolster his own witness until after the witness’s credibility was attacked.

Question 56

Witnesses - PRIOR CONSISTENT STATEMENTS (BOLSTERING)

Answer 56

Prior consistent statements are inadmissible as bolstering UNLESS used as a prior identification of a person which is a hearsay exclusion and comes in as substantive evidence.

Question 57

Witnesses - PRIOR CONSISTENT STATEMENTS (NC DISTINCTION)

Answer 57

(NC DISTINCTION) All prior consistent statements are admissible, but ONLY to bolster credibility, NOT as substantive evidence.

Question 58

Methods of Impeachment - PROCEDURE OF IMPEACHMENT

Answer 58

To impeach, one can (1) confront witness about the impeaching fact with aim of him admitting it, or (2) prove the impeaching fact with extrinsic evidence (document or testimony of other witness). Extrinsic evidence NOT allowed for prior bad acts or collateral (no relevance to the case). Extrinsic evidence ALLOWED if showing BIAS, but must first ask witness about the fact before introducing the evidence.

Question 59

Methods of Impeachment - PRIOR INCONSISTENT STATEMENTS

Answer 59

Any witness may be impeached by showing on prior occasion, she made a material statement (orally or writing that is inconsistent with her trial testimony for impeachment purposes. However, it may be admitted as substantive evidence if the statement was made (1) orally, and (2) under oath in a testimonial context. (NOTE) Not required to give opportunity to explain or deny if made by the opposing party himself

Question 60

Methods of Impeachment - PRIOR INCONSISTANT STATEMENTS (NC DISTINCTIONS)

Answer 60

(NC DISTINCTION) Never required to give any witness opportunity to explain or deny. Only admissible to impeach UNLESS in CIVIL case, NC allows a witness’s prior DEPOSITION testimony to be used as substantive evidence if inconsistent with trial testimony.

Question 61

Methods of Impeachment - BIAS, INTEREST, OR MOTIVE TO MISREPRESENT

Answer 61

Any fact of bias toward a party is permitted to impeach. To do so, witness must be confronted with alleged bias on the stand to have the opportunity to explain or deny. Once confronted, evidence can be used to prove the bias.

Question 62

Methods of Impeachment - SENSORY DEFICIENCIES

Answer 62

Anything that could affect witness’s perception or memory can be introduced as evidence to impeach credibility. Extrinsic evidence is allowed without confrontation (eye, hear, mental, drugs at time of event or while on stand).

Question 63

Methods of Impeachment - BAD REPUTATION OR OPINION ABOUT WITNESS’S CHARACTER FOR TRUTHFULNESS

Answer 63

Any witness is subject to impeachment by character evidence. Extrinsic evidence is the only way to do this.

Question 64

Methods of Impeachment - CRIMINAL CONVICTIONS

Answer 64

A witness may be impeached by proving convictions of any crime (felony or misdemeanor) where a false statement is an element of the crime can be introduced (perjury, fraud). Other convictions may be admitted to impeach if it was a (1) felony, and (2) court concludes that its probative value on issue credibility is outweighed by danger of unfair prejudice to a party.

Question 65

Methods of Impeachment - CRIMINAL CONVICTIONS (IMPORTANT REQUIREMENTS)

Answer 65

The conviction or release from prison, whichever is later, generally must be within 10 years of trial. If more than 10 years, the conviction may not be used for impeachment UNLESS court decides so. Never required to confront.
(Barbri AMP Rule) A witness other than the accused may be impeached by (1) any felony conviction unless the judge determines that its probative value is substantially outweighed by Rule 403 consideration, OR conviction of any crime requiring proof/admission of dishonesty or false statement.

Question 66

Methods of Impeachment - CRIMINAL CONVICTIONS (NC DISTINCTION)

Answer 66

Any witness may be impeached with any type of conviction if crime was punishable by more than 60 days confinement, but the 10 year time frame still applies.

Question 67

Methods of Impeachment - INQUIRY ABOUT BAD ACTS IF THEY REFLECT ADVERSELY ON WITNESS’S CHARACTER

Answer 67

To inquire about prior bad acts that reflect adversely on witness’s character for impeachment purposes, it must (1) be done on cross-examination, and (2) cross examiner must have a good-faith basis for the inquiry. Extrinsic evidence may be allowed for some purpose other than truthfulness, such as bias.

Question 68

Methods of Impeachment - CONTRADICTION

Answer 68

If cross-examiner confronts witness to obtain admission that he made a mistake or lied about any fact that he testified to during direct examination, the witness is impeached by contradiction if he admits the mistake or lie. HOWEVER, if he sticks to his story, extrinsic evidence is NOT allowed for collateral facts.

Question 69

Methods of Impeachment - REHABILITATION OF A WITNESS

Answer 69

A witness who has been impeached may be rehabilitated on redirect examination OR by extrinsic evidence. Where witness’s general character for truthfulness has been attacked, another witness may testify to the witness’s good reputation for truthfulness or to give an opinion as to the truthfulness of the impeached witness.

Question 70

Methods of Impeachment - PRIOR CONSISTENT STATEMENT

Answer 70

A prior consistent statement may be admissible to rebut the impeachment and as substantive evidence if statement was made before the motive to lie arose (bias because of marriage, but the act occurred before spouses met each other).

Question 71

Methods of Impeachment - PRIOR CONSISTENT STATEMENT (NC DISTINCTION)

Answer 71

(NC Distinction) Prior consistent statements can be used to anytime bolster a witness. No extrinsic evidence.

Question 72

Privileges - ATTORNEY-CLIENT PRIVILEGE

Answer 72

AC privilege is (1) a confidential communication, (2) between an Attorney and client, (3) made during professional legal consultation. EXCEPTIONS include (1) help with future crime or fraud, (2) legal advice at issue, or (3) attorney-client dispute.

Question 73

Privileges - DOCTOR-PATIENT PRIVILEGE

Answer 73

The doctor-patient privilege applies to (1) confidential communication or information acquired by doctor from patient, (2) for the purpose of diagnosis or treatment of medical condition.

Question 74

Privileges - DOCTOR-PATIENT PRIVILEGE (NC DISTINCTION)

Answer 74

(NC Distinction) The privilege applies in NC, BUT the judge has discretion to lift this privilege if necessary for justice. Also, this privilege is not applicable at all in child abuse or child neglect cases.

Question 75

Privileges - SPOUSAL IMMUN ITY (CRIMINAL ONLY)

Answer 75

Under spousal immunity, a spouse cannot be compelled to testify about anything against the defendant spouse. The witness0spouse is the holder of this privilege, and, thus, may volunteer to testify if she chooses.

Question 76

Privileges - SPOUSAL COMMUNICATIONS (CRIMINAL AND CIVILCASES)

Answer 76

In any case, a spouse is not required, and is not allowed to disclose a confident communication made by one spouse to the other during the marriage, unless the other spouse consents. Exceptions: (communication or acts in furtherance of a jointly perpetrated future crime or fraud, (2) spousal or child abuse, or (3) litigation between spouses.

Question 77

Privileges - ADDITIONAL PRIVILEGES

Answer 77

Clergy-parishioner, Self-Incrimination, Government.

Question 78

Hearsay - HEARSAY

Answer 78

Hearsay is an out of court statement offered to prove the truth of the matter asserted in the statement. A statement is not hearsay if it is NOT offered to prove the truth of the matter asserted in the statement.

Question 79

Hearsay - LEGALLY OPERATIVE WORDS, VERBAL ACT, (NOT) HEARSAY

Answer 79

Generally, legally operative words are not hearsay such as words of a contract formation.

Question 80

Hearsay - WORDS THAT SHOW EFFECT ON PERSON WHO HEARD OR READ THE STATEMENT (NOT) HEARSAY

Answer 80

A statement that is inadmissible hearsay may be admitted to show the statement’s effect on the hearer or reader.

Question 81

Hearsay - CIRCUMSTANTIAL EVIDENCE OF SPEAKER’S STATE OF MIND (NOT) HEARSAY

Answer 81

Statements that serve as circumstantial evidence of declarant’s state of mind are not hearsay (“I am Elvis”).

Question 82

Hearsay - PRIOR STATEMENTS OF TRIAL WITNESS (NOT) HEARSAY

Answer 82

Prior statements of witness are not hearsay if (1) to identify, (2) inconsistent and under oath in testimonial capacity, or (3) consistent but used to rebut charge of recent fabrication, improper motive, or influence.

Question 83

Hearsay - PRIOR STATEMENT OF TRIAL WITNESS (NC DISTINCTION)

Answer 83

(NC Distinction) Prior statements can always be used to bolster credibility, but not as substantive evidence. However, prior inconsistent statements made in deposition, in civil trial, is substantive evidence.

Question 84

Hearsay - OPPOSING PARTY STATEMENTS (NOT) HEARSAY

Answer 84

Any statement made by a party is admissible as non-hearsay, if it is offered against the party.

Question 85

Hearsay - OPPOSING PARTY’S AGENT’S STATEMENTS (NOT) HEARSAY

Answer 85

Any statement made by a party’s agent/employee is admissible as non-hearsay, if offered against the party AND the agent/employee made the statement (1) within the scope of their agency/employment, and (2) while employed.

Question 86

Hearsay - CO-CONSPIRATORS STATEMENT (NOT) HEARSAY

Answer 86

Any statement of a co-conspirator is admissible against a party who was a member of the conspiracy if the statement was made (1) during, and (2) in furtherance of the conspiracy.

Question 87

Hearsay - CRIMINAL DEFENDANT’S RIGHT OF CONFRONTATION (CRIMINAL CASES)

Answer 87

The 6th Amendment right of confrontation requires that a criminal defendant be confronted with witnesses against him. Thus, the prosecution may not use a hearsay statement against a criminal defendant, even if it falls within an exception if (1) the statement is testimonial, (2) the declarant is unavailable, and (3) defendant has not had an opportunity for cross examination.

Question 88

Hearsay - CRIMINAL DEFENDANT’S RIGHT OF CONFRONTATION (TESTIMONIAL)

Answer 88

(1) Grand Jury Testimony, (2) Police interrogation to prove past events potentially relevant to a later criminal prosecution (NOT police interrogation if the primary purpose of questioning is to enable police assistance to meet an ongoing emergency), (3) Documents, (4) forensic laboratory reports, and (5) police reports (NOT business records.

Question 89

Hearsay Exceptions (Declarant UNAVAILABLE - FORMER TESTIMONY HEARSAY EXCEPTION

Answer 89

The former testimony of a now-unavailable witness, given at a former proceeding or deposition, is admissible against a party who had an opportunity and motive on that prior occasion to cross-examine the witness’s testimony.

Question 90

Hearsay Exceptions (Declarant UNAVAILABLE - GROUNDS OF UNAVAILABILITY

Answer 90

(PAILS) The grounds of unavailability include: (1) Privilege, (2) absence from jurisdiction, (3) illness or death, (4) lack of memory, and (5) stubborn refusal to testify.

Question 91

Hearsay Exceptions (Declarant UNAVAILABLE - GROUNDS OF UNAVAILABILITY (NC DISTINCTION)

Answer 91

North Carolina also includes civil actions, deposition testimony, if person is more than 100 miles away from the court. Also, in civil actions, a video deposition of an expert witness may be used without unavailability.

Question 92

Hearsay Exceptions (Declarant UNAVAILABLE - STATEMENT AGAINST INTEREST HEARSAY EXCEPTION

Answer 92

An unavailable declarant’s statement against his (1) pecuniary, (2) proprietary, or (3) penal interest are all admissible. In CRIMINAL cases however, the statement against penal interest must be supported by corroborating circumstances showing trustworthiness of statement (I heard one say he did it).

Question 93

Hearsay Exceptions (Declarant UNAVAILABLE - DYING DECLARATION HEARSAY EXCEPTION

Answer 93

A statement made under a belief of impending and certain death by a now-unavailable declarant concerning the cause or surrounding circumstances of his death, is admissible as a dying declaration. The declarant need not actually die so long as he thought he would, but he still must be unavailable. CRIMINAL CASES: Only available for homicide cases. CIVIL CASES: Available for ALL cases.

Question 94

Hearsay Exceptions (Declarant UNAVAILABLE - DYING DECLARATION HEARSAY EXCEPTION (NC DISTINCTION)

Answer 94

(NC Distinction) In North Carolina, dying declaration is available for ALL cases, CRIMINAL or CIVIL.

Question 95

Hearsay Exceptions (Declarant UNAVAILABLE - STATEMENT OF PERSONAL OR FAMILY HISTORY

Answer 95

A statement concerning the birth, death, marriage, or divorce relationships of family members are admissible as an exception. Generally, the person testifying must be a family member or so close to the family that they are likely to have accurate information.

Question 96

Hearsay Exceptions (Declarant UNAVAILABLE - PARTY CAUSED DECLARANT TO BE UNAVAILABLE

Answer 96

Hearsay is admissible against a defendant whose wrongdoing made the witness unavailable if the court finds by preponderance that the defendant’s conduct was intended to prevent the witness from testifying. Thus if found, this forfeits both the hearsay and Sixth Amendment objections.

Question 97

Hearsay Exceptions (Declarant UNAVAILABLE - PARTY CAUSED DECLARANT TO BE UNAVAILABLE (NC DISTINCTION)

Answer 97

(NC DISTINCTION) North Carolina has NOT adopted the exception for statements against a party who procured the declarant’s unavailability.

Question 98

Hearsay Exceptions (Declarant can be available) - EXCITED UTTERANCE

Answer 98

An excited utterance is a statement concerning a startling event and made while declarant is still under the stress of excitement caused by the event. Factors include (1) nature of event, and (2) time (most likely within an hour)

Question 99

Hearsay Exceptions (Declarant can be available) - PRESENT SENSE IMPRESSION

Answer 99

A present sense impression is the description of an event made while the event is occurring or immediately thereafter (typically within seconds). There is no need for a startling event.

Question 100

Hearsay Exceptions (Declarant can be available) - PRESENT STATE OF MIND

Answer 100

Under the present state of mind exception to hearsay, a statement is admissible if the contemporaneous statement was concerning the declarant’s present state of mind, feelings, or emotions (don’t love my family).

Question 101

Hearsay Exceptions (Declarant can be available) - DECLARATION OF INTENT

Answer 101

A statement of a declarant’s intent to do something in the future, including the intent to engage in conduct with another person, is admissible as an EXCEPTION to hearsay (I’m meeting with V to go bowling).

Question 102

Hearsay Exceptions (Declarant can be available) - PRESENT PHYSICAL CONDITION

Answer 102

A statement made to anyone about declarant’s current physical condition is admissible (I feel pain in my arm).

Question 103

Hearsay Exceptions (Declarant can be available) - STATEMENT IN OBTAINING MEDICAL TREATMENT OR DIAGNOSIS

Answer 103

A statement to anyone is admissible if declarant is seeking medical assistance and the statement concerns (1) present symptoms, (2) past symptoms, OR (3) the general cause of the condition. Fault/identity inadmissible.

Question 104

Hearsay Exceptions (Declarant can be available) - STATEMENT IN OBTAINING MEDICAL TREATMENT OR DIAGNOSIS (NC DISTINCTION)

Answer 104

(NC DISTINCTION) North Carolina does not include medical diagnosis for purpose of expert opinion.

Question 105

Hearsay Exceptions (Declarant can be available) - BUSINESS RECORDS

Answer 105

Records of any type of business are admissible if (1) made in the regular course of business, (2) the business regularly keep such records, (3) they were made at or about the time of the event recorded, and (4) consists of information observed by employees of the business.

Question 106

Hearsay Exceptions (Declarant can be available) - BUSINESS RECORDS (NC DISTINCTION)

Answer 106

(NC DISTINCTION) In North Carolina, a custodian or other qualified witness must testify to the authenticity: NOT self-authenticated.

Question 107

Hearsay Exceptions (Declarant can be available) - PUBLIC RECORDS

Answer 107

Records of a public office or agency are admissible if (1) activities of the office/agency (2) matters observed pursuant to duty imposed by law (weather), OR (3) fact findings/opinion resulting from investigation by law.

Question 108

Hearsay Exceptions (Declarant can be available) - POLICE REPORTS PREPARED FOR PROSECUTION (HEARSAY-NOT ADMISSIBLE)

Answer 108

Police reports prepared for prosecutorial purposes are NOT admissible against the defendant in a criminal case.

Question 109

Hearsay Exceptions (Declarant can be available) - DOUBLE HEARSAY

Answer 109

Hearsay within hearsay is NOT admissible unless each statement falls under a hearsay exception.

Question 110

Judicial Notice of Fact - JUDICIAL NOTICE OF FACT

Answer 110

Judicial notice is the recognition of a fact as true without formal presentation of evidence: (1) facts of common knowledge in the community, and (2) facts capable of accurate/ready resolve by source that can’t be questioned.

Question 111

Judicial Notice of Fact - FACTS OF COMMON KNOWLEDGE IN COMMUNITY

Answer 111

Judicial notice will be taken of facts that well0informed persons generally know and accept. Although some facts of common knowledge are known everywhere, it is still sufficient if known in the community of the court.

Question 112

Judicial Notice of Fact - FACTS CAPABLE OF ACCURATE AND READY DETERMINATION

Answer 112

Judicial notice will be taken if they are easily verified by resorting to easily accessible well-established sources.

Question 113

Judicial Notice of Fact - JUDGE’S PERSONAL KNOWLEDGE

Answer 113

A judge may have to ignore facts he knows as a private person if they are neither (1) commonly known in the community, nor (2) capable of certain verification to easily accessible sources of indisputable accuracy.

Question 114

Judicial Notice of Fact - PROCEDURAL ASPECT OF JUDICIAL NOTICE

Answer 114

A court may take judicial notice of fact on its own accord, or a party must formally request that notice be taken. An appellate court is required to take judicial notice that the trial court properly took notice or was obliged to notice.

Question 115

Judicial Notice of Fact - CRIMINAL V. CIVIL DISTINCTION

Answer 115

In civil cases, the court SHALL instruct jury to accept all judicially noticed facts. In criminal cases the court must instruct the jury that it MAY, BUT IS NOT REQUIRED to accept as conclusive any judicially noticed facts.

Question 116

Judicial Notice of Fact - ADJUDICATIVE FACTS V. LEGISLATIVE FACTS

Answer 116

The federal rules govern only judicial notice of adjudicative facts, NOT legislative facts. Thus, LEGISLATIVE FACTS need not be common knowledge or indisputable verification to be noticed

Question 117

Judicial Notice of Law - JUDICIAL NOTICE OF LAW

Answer 117

The judge’s task of finding applicable law is accomplished by informal investigation of legal sources and is considered to be the judge taking judicial notice of the law applicable to the case.

Question 118

Judicial Notice of Law - MANDATORY JUDICIAL NOTICE OF LAW

Answer 118

Most courts take judicial notice without request of (1) federal law, (2) state public law, and (3) official regulations.

Question 119

Judicial Notice of Law - PERMISSIVE JUDICIAL NOTICE OF LAW

Answer 119

Most courts may, without being supplied with the sufficient information, take notice of municipal ordinances, private acts or resolutions of Congress and state legislatures, and foreign country laws.