Evidence

Question 1

RELEVANCE (logical)

Answer 1

That which has any tendency to make a fact of consequence in determining the action more or less probable than it would be without the evidence

Question 2

RELEVANCE (legal: Rule 403) - Balancing test / Exclusion

Answer 2

Excluded if
- probative value substantially outweighed by risk of
> unfair prejudice ~or~
> confusion, misleading, undue delay, wasting time, or needlessly cumulative

Question 3

SPOUSAL PRIVILEGE: Spousal Immunity

Answer 3

No MARRIED person may be compelled to testify against their spouse in
ANY CRIMINAL proceeding
(covers events BEOFRE the marriage)

Question 4

PRIVILEGE:

Confidential Marital Communications

Answer 4

Confidential communication made between spouses WHILE MARRIED is privileged
(both spouses hold; civil and criminal; survives termination of marriage)

Question 5

SUBSEQUENT REMEDIAL MEASURES (Rule 407)

Answer 5

Not admissible to prove

• Negligence, culpable conduct,
• defective product or design,
• need for warning

Question 6

LIABILITY INSURANCE (Rule 411)

Answer 6

Not admissible to prove negligence, culpable conduct, defective product or design, OR need for warning

Question 7

OFFER TO PAY MEDICAL EXPENSES (Rule 409)

Answer 7

Not admissible to prove liability for the injury

Question 8

Present Recollection Refreshed

Answer 8

May refresh with document (or anything!) to help them remember.

• Not into evidence
• other party may see it

Question 9

Relevant Evidence

Answer 9

Makes a fact more or less likely than it would be without the evidence
- all relevant evidence is admissible

Question 10

Character Evidence - Propensity

Answer 10

Prohibited evidence that the person acted in conformity with their character

Question 11

Character Evidence - can be proven by

Answer 11

Reputation and Opinion

Question 12

Character Evidence - Criminal Trials ; def character

Answer 12

Prosecution = can’t introduce evidence of Bad Character
Def = Can introduce Good character of himself / reputation + opinion only
~but (Opened the Door!) ~ then Prosecution can use SPECIFIC ACTS of bad character on CROSS

Question 13

Character Evidence - Criminal Trials ; victim character

Answer 13

Def can introduce for Self defense / reputation + opinion only
- but-
Prosecution can rebut w/ good character of Vic and bad character of Def // reputation + opinion only

Question 14

Character Evidence - Other Purposes ..sneaky ways

Answer 14

MIMIC
> Motive
> Intent
> Mistake (crime was not likely a mistake bc it happened 3 times before. Absence of Mistake)
> Identity- MO / signature crimes (wet bandits)
> Common Plan - scheme (series of similar crimes)

Question 15

Habit Evidence

Answer 15

Allowed to prove acted in conformity w/ habit
Must be - routine, regular, automatic
(can be a business too - opening and stamping mail)

Question 16

Judicial Notice

Answer 16

When there is no reasonable dispute about a fact

Trenton is the capital of NJ / Pro Sports game time + place

Question 17

Impeachment - 5 ways

Answer 17

B-I-C-C-C

1. Bias
2. Inconsistent Statements
3. Capacity
4. Character
5. Contradiction

Question 18

How can you Impeach by Character

Answer 18

Reputation or Opinion

Question 19

When can you use Specific Acts to Impeach Character?

Answer 19

On Cross

• Must accept the answer - no mini trial w/ evidence that they lied
• No extrinsic evidence

Question 20

Impeachment - Character w/ Criminal Convictions

Answer 20

– Against the Witness:
1. Crimes involving Dishonesty / false statements
Ex: perjury, fraud, embezzlement
2. Felonies - Punishable by death or over a year prison Unless - the risk of Prejudice SUBSTANTIALLY outweighs the Probative value

– Against the Crim Defendant:
1. Crimes involving Dishonesty / false statements
Ex: perjury, fraud, embezzlement
2. Felonies - Punishable by death or over a year prison Only If - the Probative Value Outweighs the risk of Prejudice

Question 21

Impeachment - Prior Inconsistent Statements

Answer 21

Any + Can use Extrinsic Evidence - allow witness to explain it. (Show Police Rept - then W- “I was shaken by the accident”)

Question 22

Rehabilitate - Impeached witness

Answer 22

• Prior Consistent Statement
• Clarify + Explain
• Reputation / Opinion of Character for Truthfulness

Question 23

Spousal Privilege

Answer 23

Confidential Communications

• Communication during marriage
• Held by both + Can prevent the other from testifying
• Survives after marriage

Spousal Immunity
- Criminal - right to refuse to testify
- currently married
- covers anything before or during marriage
- Only Married couples
> Exceptions - 1 sues other // crimes where 1 = actor vs other victim

Question 24

Hearsay - def

Answer 24

An Out of Court statement offered for the truth of the matter asserted

Question 25

Other Uses that are Not Hearsay

Answer 25

- Prove the statement was said (def made a statement) - Effect on the Listener (the ins co had notice) - State of Mind (speech in French - he's fluent )

Question 26

Not Hearsay - TESTIFYING Available Witness (3)

Answer 26

1. Prior Inconsistent Statements under Oath 2. Prior Consistent Statements 3. Prior ID Statements (line up)

Question 27

Not Hearsay - Party Opponent Statement (3)

Answer 27

1. Party Admission - introduced against party (anything they said ) 2. Adoptive Admission - by statement (Did you rob the bank? Yes) ~or~ Silence (reasonable Person would have denied said something and denied) 3. Vicarious Admission - other people authorized to speak on their behalf = lawyer, employee in the scope, co-conspirator, (must be evidence of employment or conspiracy)

Question 28

Unavailable Declarant - (5)

Answer 28

1. Exempted by a Privilege - spousal / attorney client 2. Refuses 3. Lacks Memory 4. Dead or too Ill 5. Can't be subpoenaed or found 6. NOT where the party made them unavailable ..DUH!

Question 29

Unavailable Declarant - Hearsay Exceptions (5)

Answer 29

1. Former Testimony - IF - Other party had opportunity and similar motive to examine at previous trial 2. Dying Declaration - believe dying, death impenitent, statement relates to the cause of death, 3. Statement Against Interest - Reasonable person wouldn't have made the statement (exonerating must have other evidence - suspicious ..my dead friend did it ) 4. Family History - he's dad 5. Made Unavailable by the party - anything in

Question 30

Hearsay Exceptions - People (5)

Answer 30

1. Present Sense Impression 2. Excited Utterance 3. State of Mind - emotional, physical, mental ~ Can be used to show action in conformance with the intent to do something (I'm going to grandma's ..intent to go + went) 4. Medical Diagnosis / Treatment statements 5. Past Recollection Recorded - can't remember , wrote when fresh, personal knowledge ~ can be read, not given to jury, Opp party can introduce

Question 31

Hearsay Exceptions - Records (5)

Answer 31

1. Business Records 2. Public Records 3. Learned Treatises - scientific stuff by experts, etc 4. Other legit records, marriage, vital stats, ancient docs

Question 32

Confrontation Clause -

Answer 32

Out of Court "TESTIMONIAL" Statement - NOT ALLOWED - Unless Either = Made available for Cross ~or~ Prior Opportunity to Cross

Question 33

Impeachment of Witness - collateral Issue

Answer 33

Cannot use extrinsic evidence | - including another person testifying about that person being untruthful-

Question 34

Confrontation Clause

Answer 34

To Admit an out-of-court testimonial statement of a declarant against a criminal Def: 1) declarant must be UNAVAILABLE ~ and ~ 2) D must have had opportunity to cross-examine declarant testimonial stmt: requires objective analysis of the circumstances, rather than the subjective purpose of the participants

Question 35

Writing to refresh witness - Inspection by other party | Before Testimony vs Testifying

Answer 35

Used Before = May allow | Used While = Must allow

Question 36

Defendant claims he did something Accidentally | - Witness testifies to rebut that several times he did something close (Character) ...yes or no ?

Answer 36

Yes - Shows he did it INTENTIONALLY -- -Absence of Mistake MIMIC = Motive, Intent, Mistake (absence), Identity (MO) , Common Plan

Question 37

Past Recollection Recorded -

Answer 37

- CAN be Played if Tape or Read if Document - Only admit by other party * * Personal Knowledge, Made Fresh, Forgets, Accurate

Question 38

Impeach by asking WITESS about His Own Untruthful Act

Answer 38

- Allowed b/c INTRINSIC ~ from his own mouth - Asking someone else about the same act would be EXTRINSIC ..not allowed ~ only allowed extrinsic by reputation or opinion

Question 39

Impeachment by Bias - Witness or the out of court Declarant

Answer 39

- Always allowed to Show Bias - "Didn't the Declarant beat up the Defendant the other day?" > shows that friend / declarant might not like the Defendant and would lie about him

Question 40

Specific Acts for Character - when essential Element of a Crime or ..Defense (Self Defense)

Answer 40

By Specific Instances of Conduct.- the character or trait may also be proved by relevant specific instances of the person’s conduct.