Big Ticket Items

Question 1

When may character evidence be offered for SUBSTANTIVE purposes?

Answer 1

1. Prove character when it is the ultimate issue in the case

2. serve as CIRCUMSTANTIAL evidence of how a person probably acted

Question 2

Is character evidence to show how a person probably acted generally admissible in a civil case?

Answer 2

No, unless character is directly at issue

Question 3

Who is generally the only party who can initiate the introduction of character evidence in a criminal case?

Answer 3

The defendant

Question 4

How many a defendant prove character in a criminal case?

Answer 4

A witness for the D may testify as to the D’s good (1) reputation for the train in question and may give his personal (2) opinion concerning that trait of D

Question 5

What does the D put in issue by taking the stand?

Answer 5

His credibility, NOT his character

Question 6

How may the prosecution rebut a D’s witness’s character evidence?

Answer 6

May inquire about ANY misconduct, including prior arrests; however, the prosecutor may NOT introduce any extrinsic evidence

Question 7

1. When may the D introduce evidence of the victim’s bad character trait?
2. How may the prosecution respond?

Answer 7

1. When it is relevant to show the D’s innocence, i.e. self-defense
2. Prosecution may offer evidence of the victim’s good character for the same trait or the defednat’s bad character for the same trait

Question 8

When may a rape victim’s past behavior be admitted in a criminal case?

Answer 8

Although generally inadmissible (LoL), it may be introduced to show that someone other than the defendant is the source of semen, injury, physical evidence, or that there was consent

Question 9

When may a rape victim’s past behavior be admitted in a civil case?

Answer 9

When the probative value substantially outweighs the harm of unfair prejudice

Question 10

When can the prosecution introduce evidence of the victim’s peacefulness when the defendant claims self-defense?

Answer 10

At any time, DN have to wait for D to introduce evidence of vic’s bad character

Question 11

Is a person’s past misconduct generally admissible?

Answer 11

No, it’s generally inadmissible

Question 12

When is evidence of a person’s past misconduct admissible?

Answer 12

if the acts are relevant to some issue other than the D’s character or disposition to commit the crime or act at issue. Such issues include MIMIC: motive, intent, absence of mistake, identity, common plan or scheme.

Question 13

In order to introduce evidence of a defendant’s past misconduct, i.e. MIMIC evidence, what are the req’s?

Answer 13

1. must be sufficient to support a jury finding that the D committed the prior act AND
2. probative value must N be substantially outweighed by danger of unfair prejudice

Question 14

Prior acts of sexual assault or child molestation?

Answer 14

Evidence of a D’s prior acts of sexual assault or child molestation are admissible where the D is accused of same

Question 15

How may a party introduce evidence of a wit’s prior inconsistent statement?

Answer 15

By cross-exam OR extrinsic evidence. Witness must be given an opportunity to explain or deny the statement and the adverse party is at some point given an opportunity to examine the witness. (opportunity to explain doesn’t need to come before introduce of the evidence)

Question 16

Is evidence of a prior inconsistent statement admissible for substantive purposes?

Answer 16

Generally, evidence of a prior inconsistent statement is admissible only for impeachment purposes; however, if the statement was made under oath at a prior proceeding, it is admissible nonhearsay and may be admitted as substantive evidence of the facts stated

Question 17

What evidence may be used to impeach a witness re: a crime?

Answer 17

ONLY a conviction, an arrest or indictment is not sufficient.

Question 18

What type of crimes may be used to impeach a witness?

Answer 18

1. Any crime involving dishonesty or false statement, felony or misdemeanor (perjury, false statement, criminal fraud, embezzlement, false pretense)
2. Felonies not involving dishonesty or false statement

Question 19

When may the court exclude evidence of a felony?

Answer 19

1. When the witness being impeached is a criminal defendant and the prosecution has NOT shown that the convictin’s probative value outweights its prejudicial effect OR
2. in the case of regular witness, the court determines that the convictin’s probative value is subbstantially outweighed by its prejudicial effect (r. 403 balancing test)

Question 20

When may a remote conviction be used?

Answer 20

Generally, a conviction from more than ten years ago is inadmissible. however, a court may admit in extraordinary circumstances if: (1) its probatve value substantially outweighs it prejudicial effect (reverse 403) and (2) the proponent gives the adverse party written notice of their intent to use it

Question 21

When may a witness be asked about prior misconduct?

Answer 21

only if the fact is probative of truthfulness (an act od deciet or lying). cross-examiner must inquire in good faith

Question 22

may extrinsic evidence be used re: bad acts, i.e. specific acts of misconduct that are NOT convictions of a crime?

Answer 22

no

Question 23

re: asking about a bad act, can you ask a witness if he was arrested for embezlement?

Answer 23

no, may only ask whether the witness did in fact commit embezzlement or did embezzle

Question 24

how can you impeach a wit’s character for truthfulness?

Answer 24

(1) reputation or (2) specific opinion

Question 25

how may you show that the wit has a sensory deficiency?

Answer 25

by cross-exam or extrisnic evidence

Question 26

may you impeach a witness on a collateral matter?

Answer 26

generally no

Question 27

how can you impeach an unavailable hearsay declarant?

Answer 27

in the same ways you would attack the credibility of a regular testifying witness; however, need to clarify a prior inconsistent statement is not necessary

Question 28

What is a "statement" for purposes of the hearsay rule?

Answer 28

1. oral or written assertion OR 2. nonverbal conduct intended as an assertion (nod of the head)

Question 29

Which out of court statements are NOT hearsay b/c they are "not offered for the truth of the matter asserted"? (3)

Answer 29

1. verbal acts or legally operative facts (words of contract; defamatory words) 2. statements offered to show their effect on the listener or reader (to prove notice in negligence cases) 3. statements offered as circumstantial evidence of declarant's state of mind (e.g. evidence of insanity or knowledge)

Question 30

What statements are deemed to be nonhearsay by the federal rules and are therefore able to offered as substantive evidence? (unless there's an independent ground for exclusion)

Answer 30

1. prior statements by a testifying witness a. prior inconsistent statement b. prior consistent statement to rebut a charge that the witness is lying c. prior statement of identification 2. statements by or attributable to an opposing party a. judicial and extrajudicial statements b. adoptive statements c. vicarious statements

Question 31

When may a party's prior consistent statement be used /qualify as nonhearsay?

Answer 31

when it's being used to rebut a charge that the witness is lying orexaggerate b/c of some motive (stmt was made BEFORE any motive to lie arose) OR offered to rehabiliate a witness whose credibility ahs been impeaced on some other ground such as inconsistency or sensory deficiency

Question 32

What qualifies as an opposing party statement?

Answer 32

does not have to be against the declarant's interest when made, any may even be in the form of an opinion. personal knowledge is N req'd; statement may be predicated on hearsay.

Question 33

when does a party's silence constitute an adoptive statement?

Answer 33

1. the party heard and understood the statement 2. the party was physically and mentally capable of denying the statement 3. a RP would have denied the statement

Question 34

Are statements by a coparty admissible as nonhearsay vicarious statements?

Answer 34

nope, CN be used against another party merely b/c they are coparties

Question 35

when is a statement by an agent or employee admissible against the principal?

Answer 35

if the statement 1. concerned any matter within the scope of her agency or employment and 2. was made during the existence of the agency or employment relationship

Question 36

are statements by partners admissible against other partners?

Answer 36

yes

Question 37

are statements by one conspirator admissible against co-conspirators?

Answer 37

yes, if made to a third party in furtherance of the conspiracy

Question 38

When is a declarant unavailable?

Answer 38

1. is exempt from testifying b/c of privilege 2. refuses to testify despite a court order 3. testifies that he DN remember the subject matter 4. is unable to testify due to death or physical or mental illness; or 5. is absent

Question 39

when is the testimony of a now unavailable witness admissible?

Answer 39

1. if the testimony was given under oath at a trial, hearing, or deposition, in the same case or in a different case; AND 2. the party against whom the testimony isn ow being offered or in a civil case the party's predecessor in interest had an opportunity and similar motive to develop the declarant's testimony thru direct, cross, etc.

Question 40

is the grand jury testimony of an unavailable declarant admissible under the former testimony exception?

Answer 40

no b/c accused did not have chance to cross examine. can still be admitted under the prior inconsistent statement tho, both as impeachment and substantive

Question 41

when is a statement against interest admissible?

Answer 41

when the declarant is unavailable, statement may be admissible if it was against that person's pecuniary, proprietary, or penal interest WHEN MADE, such that a RP in the declarant's position would have made it only if she believed it to be true. declarant must also have personal knowledge of the facts and must've been aware that it was against her interest when made. ***the exception only includes remarks that inculpate the declarant, N the entire declaration

Question 42

in which type of cases may a dying declaration be used?

Answer 42

all civil cases and only in criminal homicide cases (NOT ATTEMPTED homicide)

Question 43

when is a dying declaration admissible?

Answer 43

the declarant is now unavailable: 1. declarant believed his death was imminent and the statement concerned the cause or circumstances

Question 44

when may a statement of personal or family history be used?

Answer 44

when the declarant is now unavailable and the the statement is a member of the family and it is based on personal knowledge of the facts or her knowledge of family reputation

Question 45

what are the hearsay exceptions in which unavailability is req'd?

Answer 45

1. former testimony 2. statement against interest 3. dying declaration 4. statement of personal or family history 5. statement offered against party procuring declarant's unavailability

Question 46

excited utterance?

Answer 46

hearsay statement relating to a startling event made while under the stress of the event and before the declarant had time to reflect upon it (sometimes a failed dying declaration may succeed as an excited utterance)

Question 47

present sense impression?

Answer 47

describes or explains an event or condition and is made while or immediately after

Question 48

present state of mind?

Answer 48

statement of declarant's then-existing state of mind: motive, intent, plan, emotions, sensory, or physical condition is admissible. NOT substantive.

Question 49

statements made for diangosis or treatment?

Answer 49

includes past conditions. a statement that describes a person's medical history, past or present symptoms, or their inception or general cause is admissible as an exception to the hearsay rule if it was made for, and was reasonably pertinent to medical treatment. statement made to medical personnel is not an absolute requirement.

Question 50

are police records admissible against a criminal defendant under the biz records exception?

Answer 50

No

Question 51

business records:

Answer 51

must consist of matters within the personal knowledge of the entrant or within the knowledge of someone with a duty to transmit such matters to the entrant. watch for double hearsay: altho an incident report might be admissible, the statements from a witness may not be. on the other hand, if the report contains merely the entrant's own observations or statements made by a person under a business duty to report the information, the entire report may be admissible under the business records exception.

Question 52

can a police report be admitted under hte official records and reports exception?

Answer 52

yes, even the officer's opinions and factual conclusions. watch for other witness statements, to. also, remember that public records (i.e. police reports) are not admissible against the defendant in a criminal case, i.e. investigative reports by the police or FBI are inadmissible against the criminal defendant.

Question 53

prior criminal conviction - felony conviction -- admissible as hearsay exception?

Answer 53

yes, can be used as substantive and impeachment evidence against defendant; may only be used for impeachment purposes against others

Question 54

ancient documents?

Answer 54

statements in any authenticated document made before Jan 1, 1998

Question 55

documents affecting property interests?

Answer 55

a statement in a document affecting a property interest, i.e. deed, will, etc. is admissible if the statement is relevant to the document's purpose

Question 56

learned treatises hearsay exception?

Answer 56

admissible if: 1. called ot the attention of or relied upon by an expert witness AND established as reliabile authority by the testimony of that witness, other expert testimony, or judicial notice. statement may be read into evidence but not received as an exhibit.

Question 57

market report hearsay exception?

Answer 57

admissible if generally used and relied upon by the public or by persons in a particular occupation

Question 58

family records hearsay exception?

Answer 58

includes geneaologies, jewelery engravings, family biblbes, tombstone engravings

Question 59

residual catch-all exception. 3 conditions:

Answer 59

for a hearsay statement that is not covered by a specific exception. 1. statement must possess sufficient guarantees of trustworthiness 2. statement must be necessary, i.e. more probative as to the fact than any other evidence that then proponent can R produce 3. proponent must give R notice

Question 60

what are the 2 types of statements that qualify as nonhearsay?

Answer 60

1. prior inconsistent statement | 2. statements by an opposing party