Evidence

Question 1

Relevant Evidence

Answer 1

Evidence that has any tendency to make a material fact more probable or less probable than would be the case without evidence

Question 2

Similar Occurrence

Answer 2

If evidence concerns some time, event or person other than that involved in the case at hand, the evidence is inadmissible.

Question 3

Plaintiff’s Accident History

Answer 3

Generally, plaintiff’s accident history is Inadmissible because it shows nothing more than the fact that the plaintiff is accident prone

Exception - admissible if the event that caused the plaintiff’s injuries is at issue

Question 4

Similar Accidents Caused by Same Event or Conditions

Answer 4

Generally, other accidents involving defendant are inadmissible because they just show general character for carelessness

Exception - admissible if the other accident occurred under substantially similar circumstances

1. to show the existence of a dangerous condition
2. causation of accident
3. prior notice to the defendant

Question 5

Liability Insurance

Admissibility

Answer 5

Evidence that a person has or does not have liability insurance is inadmissible for the purposes of proving fault or absence of fault

Exception: may be used to show (a) proof of ownership/control of instrumentality or location, if any of these issues is disputed by the defendant; or (b) for the purpose of impeachment of a witness

Question 6

Post-Accident Repairs

Answer 6

Post-accident repairs, design changes, policy changes are inadmissible for the purpose of proving negligence, culpable conduct, product defect, or need for warning.

Exception: Subsequent remedial measures may be admissible for some other relevant purpose, such as proof of Ownership/Control or Feasibility of Safer Condition, if either disputed by the defendant

Question 7

Settlement of Disputed Civil Claims

Answer 7

The following are inadmissible in the event of a disputed civil claim:

1. evidence of settlement
2. offer to settle
3. statement of fact made during settlement discussions for the purpose of showing liability

Exceptions: Impeachment for bias
Statements of act made with a government regulatory agency

Question 8

Plea Bargaining in Criminal Case

Answer 8

The following are INADMISSIBLE:
Offer to plea guilty - cannot be used against the defendant in the pending criminal case or in subsequent civil litigation based on the same facts

Withdrawn guilty plea - cannot be used against the defendant in the pending criminal case or in subsequent civil litigation based on the same facts

Plea of nolo contendere (“no contest”) - can’t be used against defendant in subsequent civil litigation based on same facts

Statement of Fact made during any of the above plea discussions

Question 9

Offer to Pay Medical Expenses

Answer 9

Evidence that a party has paid or offered to pay an accident victim’s hospital or medical expenses is inadmissible to prove liability.

Note: does not exclude other statements made in connection with an offer to pay hospital or medical expenses

Question 10

Character Evidence

Answer 10

Refers to a person’s general propensity or disposition. e.g. honest, fairness, peacefulness, or violence

Question 11

Potential Purposes for the Admissibility of Character Evidence

Answer 11

1. Person’s character is an ESSENTIAL ELEMENT OF THE CASE
2. Proves CONDUCT IN CONFORMITY WITH CHARACTER at the time of litigated event
3. Witness’ bad character for truthfulness to IMPEACH CREDIBILITY

Question 12

`Defendant’s Character (Criminal Case)

Answer 12

Character Evidence is:

1. INADMISSIBLE during the prosecution’s case-in-chief
2. ADMISSIBLE by defendant during defense to show evidence of a relevant character trait to prove conduct. This OPENS THE DOOR TO REBUTTAL by the prosecution.

Question 13

Admissible Forms of Character Evidence

Answer 13

When character evidence is admissible through a character witness to prove conduct n conformity, the proper form:

• Reputation
• Opinion

Question 14

Prosecution’s Rebuttal

Answer 14

If defendant has “opened the door,” prosecution may:
1. Cross examine defendant’s character witnesses with “have you heard” or “did you know” questions about specific acts of the defendant that reflect adversely on the particular character trait defendant has introduced; and/or

2. by calling its own reputation or opinion witnesses to contradict defendant’s witness

Question 15

Victim’s Character - Self-defense Case

Answer 15

Criminal defendant may introduce evidence of victim’s violent character to prove victim’s conduct in conformity, i.e. as circumstantial evidence that the victim was the first aggressor

method: character wittiness may testify to victim’s reputation for violence and may give opinion

Prosecution Rebuttal: evidence of victim’s good character for peacefulness or defendant’s character for violence

Question 16

Separate Rule of Relevance

Answer 16

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

Question 17

Victim’s Character - Sexual Misconduct

Answer 17

Under “rape shield law,” in both criminal and civil cases, where defendant is alleged to have engaged in sexual misconduct, the following evidence about the victim’s ordinarily inadmissible:

1. opinion or reputation evidence about the victim’s sexual propensity, or
2. evidence of specific sexual behavior of the victim

Question 18

Victim’s Character - Sexual Misconduct - Exceptions

Answer 18

Exceptions:

1. Specific sexual behavior used to prov that someone other than the defendant was the source of semen or injury to the victim;
2. Victim’s sexual activity with the defendant if the defense of consent is asserted; or
3. Whee exclusion would violate defendant’s right of due proceeds (ex. Love Triangle Defense)

Question 19

Defendant’s Character (Civil Cases)

Answer 19

Character evidence is generally INADMISSIBLE to prove conduct in conformity

Evidence of person’s character is ADMISSIBLE in civil action whee such character is an ESSENTIAL ELEMENT OF A CLAIM OR DEFENSE

• tort action alleging negligent hiring or entrustment of employee
• defamation case (libel or slander)
• child custody dispute

Question 20

Admission of Defendant’s other crimes for non-character purposes

Answer 20

General Rule: other crimes or specific bad acts of defendant are not admissible during the prosecution’s case-in-chief if the only purpose is to suggest that because of defendant’s bad character he is more likely to have committed the crime currently charged

Question 21

Five Most Common Non-Character Purposes:

Answer 21

Motive
Intent 
Mistake or accident, the absence thereof
Identity
Common scheme or plan

Question 22

Authentication of Writings

Answer 22

If the relevance of a writing depends upon its source or authorship, a showing must be made that the writing is authentic.

Question 23

Authentication of a Document

Answer 23

Requires witness’s personal knowledge

Question 24

Proof of Handwriting

Answer 24

Can be authenticated by:

1. Lay person opinion
2. Expert comparison opinion
3. Jury comparison

Question 25

Ancient Document Rule

Answer 25

Authenticity may be inferred if document is: a. at least 20 years old; b. facially free of suspicion; and c. found in a place of natural custody

Question 26

Solicited Reply Doctrine

Answer 26

Document can be authenticated by evidence that it was received in response to a prior communication to the alleged author

Question 27

Self Authenticating Documents

Answer 27

The following are presumed to be authentic - no foundation testimony needed: 1. Official publications 2. certified copies of public or private records on file in public office 3. Newspapers or periodicals 4. Trade inscriptions and labels 5. Acknowledged document 6. Commercial paper

Question 28

Authentication of Photographs

Answer 28

Witness may testify on the basis of personal knowledge that the photograph is a "fair and accurate representation" of the people or objects portrayed

Question 29

Best Evidence Rule

Answer 29

A party who seeks to prove the contents of a writing must either: 1. produce the original writing, or 2. provide an acceptable excuse for its absence Note: writing includes sound recordings, X-rays and films

Question 30

Best Evidence Rule - Application

Answer 30

Applies: when the writing is a legally operative document or the witness is testifying to facts that she learned solely from reading about them in a writing Does not apply: when witness with personal knowledge testifies to a fact that exists independently of the writing

Question 31

Original Writing

Answer 31

An original writing is whatever the parties intended as the original. duplicate - any counterpart produced by any mechanical means that accurately reproduces the original (i.e. photocopy) Note: handwritten copy is neither an original nor duplicate

Question 32

Excuses for non-production of original

Answer 32

1. lost or cannot be found with due diligence 2. destroyed without bad faith 3. cannot be obtained with legal process

Question 33

"Escapes" for Best Evidence Rule

Answer 33

1. Voluminous record can be presented as a summary or chart 2. Certified Copies of Public Records 3. Collateral documents (may be proven by secondary evidence)

Question 34

Witnesses - Competency

Answer 34

Competency of a witness may be established through: a. personal knowledge b. oath or affirmation

Question 35

Dead Man's Statute

Answer 35

In a civil action, an interested witness is incompetent to testify in support of her own interest against the estate of a decedent concerning communications or transactions between the interested witness and the decedent Note: Under FRE, there is no "dead man's rule."

Question 36

Leading Questions | Definition and Rule

Answer 36

Defined: Form of question suggests the answer Rule: Generally NOT allowed on Direct Examination Generally ALLOWED ON Cross Examination Exceptions: 1. preliminary or introductory matters 2. youthful or forgetful witness 3. hostile witness 4. adverse party or someone under control of opposing party

Question 37

Refreshing Recollection

Answer 37

Basic Rule: Witness may not read from prepared memorandum; must testify on basis of current recollection. BUT, if witness's memory fails, he may be shown a memorandum (or any tangible item) to jog his memory. Note: Adversary has the right: - to inspect the memory-refresher - to use it on cross-examination - to introduce it into evidence

Question 38

`Past Recollection Recorded (Hearsay Exception)

Answer 38

A writing may be read into evidence when: 1. showing writing to witness fails to jog memory; 2. witness had personal knowledge at former time; 3. writing was either made by witness, or adopted by witness; 4. making or adoption occurred while the event was fresh in the witness' memory 5. Witness can vouch for accuracy of writing when made or adopted.

Question 39

Opinion Testimony - Lay Witnesses

Answer 39

Lay opinion is admissible if: 1. Rationally based on witness' perception, and 2. Helpful to jury in deciding a fact issue.

Question 40

Opinion Testimony - Expert Witness

Answer 40

(a) Qualifications - education and/or experience (b) Proper Subject matter - scientific, technical or other specialized knowledge that will be helpful to the jury in deciding a fact (c) Basis of Opinion - "reasonable degree of probability or certainty" (d) Relevance and Reliability

Question 41

Learned Treatise in Aid of Expert Testimony (Hearsay Exception)

Answer 41

On direct examination of party's own expert: Relevant portions of treatise, periodical or pamphlet may be read into evidence as substantive evidence if established as a reliable authority On Cross-examination of opponent expert: Read into evidence to impeach and contradict opponent's expert. Come in as substantive evidence. Note: may not be introduced as exhibit

Question 42

Ultimate Issues

Answer 42

Opinion testimony (lay or expert) is permissible even if it addresses an "ultimate issue" Note: "Ultimate issue" is still proper objection in criminal cases if expert seeks to give direct opinion that defendant did or did not have relevant mental state.

Question 43

Cross Examination

Answer 43

Party has a RIGHT to cross-examine any opposing witness who testifies at the trial. Cross may cover: 1. matters within the scope of direct examination; and 2. matters that test the witness' credibility

Question 44

Bolstering Own Witness

Answer 44

Rule: Not allowed until after the witness' credibility has be attacked

Question 45

Witness' Prior Identification of a Person

Answer 45

Considered a hearsay exclusion and will be entered as substantive evidence Note: witness who made prior identification must testify at trial

Question 46

`Impeachment of Own Witness

Answer 46

Party can Impeach their witness during direct examination

Question 47

Impeachment Methods (7)

Answer 47

1. Prior Inconsistent Statements 2. Bias, Interest or Motive to Misrepresent 3. Sensory Deficiencies 4. Bad Reputation or Opinion about witness's character for truthfulness 5. Criminal Convictions 6. Bad Acts (without convictions) that reflect adversely on witness's character for truthfulness 7. Contradiction

Question 48

Prior Inconsistent Statement

Answer 48

Any witness may be impeached by showing that on some prior occasion, she made a material statement that is inconsistent with her trial testimony. Witness need not be immediately confronted with prior statement, and may be proven by extrinsic evidence. Note: statement is admissible only for impeachment purposes Exception: statement may be admitted as substantive evidence if statement was made: 1. Orally under oath; and 2. As part of a formal hearing, proceeding, trial or deposition

Question 49

Bias Interest or Motive to Misrepresent

Answer 49

Procedure: Witness must be confronted with alleged bias while on the stand - extrinsic evidence may be used

Question 50

Sensory Deficiency

Answer 50

Anything that could affect witness' perception or memory. - Confrontation is not required - Extrinsic evidence may be used

Question 51

Bad Reputation or Opinion About Witness' Character for Truthfulness

Answer 51

Any witness is subject to impeachment by this method - Confrontation is not required - Extrinsic evidence is allowed Note: Call a character witness to testify that Target Witness has bad reputation for truthfulness,or that character witness has low opinion of Target Witness' character for truthfulness

Question 52

Criminal Conviction - Types Allowed

Answer 52

Purpose: to suggest testimony is false. Permissible types of convictions: 1. Convictions of any crime (felony or misdemeanor) as to which the prosecution was required to prove false statement as an element f the crime - "automatic admissibility" - court has not digression to exclude 2. If conviction didn't require proof of false statement, it must be a felony - court may exclude if probative value is outweighed by danger or unfair prejudice Time Limit: 10 years after conviction or release from prison (whichever is later)

Question 53

Criminal Convictions - Method of proof

Answer 53

1. Ask witness to admit prior conviction, or 2. Introduce record of conviction Note: not required to confront witness prior to introduction of conviction

Question 54

Bad Acts (without convictions) that reflect adversely on witness's character for truthfulness

Answer 54

Only permissible procedure: confronting witness on cross-examination - cross examiner must have good faith basis for inquiry, and permission to make inquiry is subject to court's discretion Tip: proof with extrinsic evidence may still be allowed if the bad act is relevant for some purpose other than ad character for truthfulness

Question 55

Contradiction

Answer 55

When cross-examiner, through confrontation of a witness, may try to obtain admission that she made a mistake or lied about any fact she testified to during direct examination Rule: Extrinsic evidence is not allowed for purpose of contradiction if the fact at issue is collateral

Question 56

Rehabilitation

Answer 56

Two main forms: 1. Showing witness' good character for truthfulness 2. Prior consistent statement to rebut a charge or recent fabrication

Question 57

Showing witness' good character for truthfulness

Answer 57

Allowed when impeachment clearly suggested your witness was lying - may bring out character witness to testify about reputation and opinion of character for truthfulness

Question 58

Prior consistent statement to rebut a charge or recent fabrication

Answer 58

If the witness' trial testimony is charged as a recent fabrication, or a product of improper influence, a prior statement by the witness that is consistent with the testimony will be admissible to rebut the charge IF the statement was MADE: - before the motive to fabricate arose Note: Is a hearsay exclusion and is admissible for impeachment and as substantive evidence

Question 59

Hearsay

Answer 59

Out of court statement of a person (oral or written) offered to prove the truth of the matter asserted Rule: Inadmissible unless and exception or exclusion applies

Question 60

Non-Hearsay Statements

Answer 60

1. Verbal Acts (Legally Operative Words) 2. To Show Effect on Person Who Heard or Read the Statement 3. Circumstantial Evidence of Speaker's State of Mind

Question 61

Witness-Statement Exclusions from Hearsay

Answer 61

1. Witness' prior identification of a person 2. witness' prior inconsistent statement IF oral, under oath and made during formal trial, hearing, proceeding or deposition 3. Witness' prior consistent statement IF being used now to rebut charge of recent fabrication or improper motive or influence

Question 62

Party Admissions (Statement of an Opposing Party)

Answer 62

Any statement made by a party is admissible if it is offered against the party.

Question 63

Adoptive Admission

Answer 63

If a party expressly or impliedly adopts a statement made by another person, it is as though the party herself made the state4ment. Adoption by silence occurs when a party remains silent under circumstances in which a reasonable person would protest if the statement were false.

Question 64

Vicarious Party Admissions

Answer 64

Statement by agent/employee is admissible against principal/employer if statement concerns matter within scope of agency/employment and is made during the existence of the agency/employment relationship

Question 65

Co-conspirator Statements

Answer 65

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

Question 66

Hearsay Exceptions (12)

Answer 66

1. Forfeiture by wrongdoing 2. Former testimony 3. Statement against interest 4. Dying declaration 5. Excited utterance 6. Present sense impression 7. Present state of mind 8. Declaration of intent 9. Present physical condition 10. Statement for purpose of medical treatment or diagnosis 11. Business records 12. Public records

Question 67

Sixth Amendment Right to Confrontation

Answer 67

Rule: Prosecution may not use hearsay statement against defendant if: 1. statement is testimonial, 2. the declarant is unavailable, and 3. the defendant has not opportunity for cross examination

Question 68

Kinds of testimonial evidence

Answer 68

1. Grand Jury Testimony 2. Statements in response to police interrogation - testimonial if primary purpose is to establish or prove past events potentially relevant to criminal prosecution or "functional equivalent" - non-testimonial if there is an "ongoing emergency" 3. Documents: sworn affidavits prepared for trial, forensic lab reports, etc.

Question 69

"Forfeiture Exception" (Declarant Unavailable Due to Defendant's Wrongdoing)

Answer 69

Any type of hearsay state4ment is admissible against a defendant whose wrongdoing made the witness unavailable if the court finds: 1. by a preponderance of the evidence 2. that defendant's conduct was specifically designed to prevent the witness from testifying

Question 70

Former Testimony

Answer 70

Former testimony is allowed if: 1. the witness is now-unavailable, 2. testimony was given at a former proceeding or in a deposition, 3. opposing party had an opportunity and motive to cross examine or develop the testimony of the witness on the prior occasion, and 4. the issue in both proceedings must be essentially the same

Question 71

Grounds of Unavailability

Answer 71

1. Privilege 2. Absence from Jurisdiction (beyond Ct's subpoena powers) 3. Illness or death 4. lack of memory 5. stubborn refusal to testify

Question 72

Statement Against Interest

Answer 72

1. Witness is unavailable 2. statement is made against his or her: - pecuniary interest, - proprietary interest, or - penal interest

Question 73

Statement Against Interest vs. Party Admission | 4 differences

Answer 73

a Statement Against interest differs as: 1. must be against interest when made 2. any person (not merely party) can make statement against interest 3. personal knowledge is required 4. declarant MUST be unavailable

Question 74

Qualification for Statement Against Interest in Criminal Cases

Answer 74

Statement against penal interest must be supported by circumstances showing trustworthiness of statement - need corroborating evidence

Question 75

Dying Declaration

Answer 75

Statement is made under a belief of impending and certain death by a now-unavailable declarant concerning the cause or surrounding circumstance of the declarant's death Criminal: only homicide Civil: any civil case

Question 76

Excited Utterance

Answer 76

Statement Concerning a startling event and made while declarant is Still under the stress of excitement caused by the event Factors to Consider: 1. Nature of the Event 2. Passage of Time 3. Visual Clues - exclamatory phrase - excitement oriented verbs - exclamation point

Question 77

Present Sense Impression

Answer 77

Description of an event made while the event is occurring or immediately thereafter - external

Question 78

Present State of Mind

Answer 78

Contemporaneous statement concerning declarant's present state of mind, feelings, emotions - internal

Question 79

Declaration of Intent

Answer 79

Statement of declarant's intent to do something in the future, including the intent to engage in conduct with another person

Question 80

Present Physical Conditions

Answer 80

Statement made to anyone about declarant's current physical condition

Question 81

Statement Made for the Purpose of Obtaining Medical Treatment or Diagnosis

Answer 81

Statement made to anyone (usually to medical personnel) concerning the declarants: 1. present symptoms, 2. past symptoms, 3. general cause of the declarant's condition if as to all of these the declarants' purpose in making statement was to obtain medical treatment or diagnosis.

Question 82

Business Records

Answer 82

Elements: 1. Records of a business of any type, 2. Made in the regular course of business, 3. the business regularly keeps such records, 4. made contemporaneously (at or about the time of the event), 5. Contents consist of -- information observed by employees of the business, OR a statement that falls within an independent hearsay exception

Question 83

Proving Business Records Foundation

Answer 83

1. Call sponsoring witness to testify to the five elements of business record s hearsay exception; witness need not be author of report --can be records custodian or any other knowledgeable person within the business, OR 2. Written certification under oath attesting to elements of business records hearsay exception (with advance notice to opposing party)

Question 84

Public Records

Answer 84

Records of a public office or agency setting forth: 1. the activities of the office or agency (e.g. payroll); or 2. matters observed pursuant to a duty imposed by law; or 3. findings of fact or opinion resulting from an investigation authorized by law

Question 85

Public Records - Exclusions

Answer 85

Police reports prepared for prosecutorial purposes are NOT ADMISSIBLE against the defendant in a criminal case. Nor is the prosecution in such cases allowed to introduces such reports against the defendant under the alternative theory of business records. Note: this is not an issue in civil cases - only criminal

Question 86

Double Hearsay

Answer 86

If a hearsay statement is included within another hearsay statement, the evidence is inadmissible unless each statement falls within a hearsay exception

Question 87

Impeachment of Hearsay Declarants

Answer 87

Any impeachment method may be used to attack the credibility of a hearsay declarant whose statement was admitted into evidence

Question 88

Attorney-Client Privilege

Answer 88

Rationale: to encourage clients to speak openly to counsel Elements: - confidential communication - between an attorney and client - or a representative of either - made during professional legal consult - unless privilege is waived by client or an exception is applicable

Question 89

Physician-Patient Privilege

Answer 89

Privilege Applies to: - Confidential Communication or information acquired by physician fro patient - for purposes of diagnosis or treatment of medical condition Note: Also applicable to psychotherapists or other professionals certified to diagnose or treat mental, emotional illness) Federal Distinction: in federal court actions based solely on federal law, the privilege exists only for psychotherapy (NOT physicians).

Question 90

Physician-Patient Privilege - Exception

Answer 90

If patient expressly or impliedly puts physical or mental conditions at issue. E.g. patient is plaintiff suing for damages for personal injury, or defendant asserts insanity defense.

Question 91

Spousal Immunity

Answer 91

A spouse cannot be compelled to testify about anything against the defendant spouse Holder of Privilege: witness spouse (may voluntarily testify against the defendant spouse if he/she chooses)

Question 92

Confidential Communications Between Spouses

Answer 92

In any type of case, a spouse is not required, and is not allowed in the absence of consent by the other spouse, t disclose a confidential communication (statement or act) made y one to the other during the marriage. Holder of Privilege: both spouses

Question 93

Exception to Spousal Privileges

Answer 93

1. communications or acts in furtherance of jointly-perpetrated future crime or fraud 2. Communications or acts destructive of family unit. E.g. spousal or child abuse 3. In litigation between the spouses themselves (ex. breach of contract, divorce, custody).