Evidence

Question 1

Relevance

Answer 1

two step process:

1. determine if evidence is relevant.
2. if so, determine if it should still be excluded based on judicial discretion, or public policy.

elements
1. any tendency to make the existence of any fact more less probable than it would be without the evidence
2. the fact is of consequence to the determination of the action
(probative value is not outweighed by unfair prejudice probative value=degree/ do we need it at this point?

(time, event,or person in controversy)

Question 2

personal knowledge

Answer 2

witnesses must have personal knowledge of what they are testifying about

Question 3

admissibility of evidence

Answer 3

1. relevance
2. foundation
3. proper form?
4. exclusionary rules?
5. admissible if satisfies all

Question 4

Exceptions to general rule

Answer 4

causation: can use evidence concerning other times, events, or persons if similar to events at issue

prior false claims or same bodily injury: evidence of previous similar false claims or claims involving tame BI is relevant to prove 1. present claim likely to be false, 2. P’s condition is attributable to prior injury

3. similar accidents or injuries caused by the same event or condition: admissible to prove 1. existance of a dangerous condition 2. D had knowledge of dangerous condition 3. dangerous condition was the cause of the present injury
4. previous similar acts to prove intent: history of segregation to show motive for current exclusion
5. rebutting claim of impossibility: D’s claim that the car will not go above 50mph
6. sales of similar property:
   evidence of unaccepted offers by a party to the action to buy or sell the property may be used against him as an admission.
7. Habit: describes a persons’ regular response to a specific set of circumstances. Under FRE, evidence of a person’s habit may be admitted to prove that on a particular occasion the person acted in accordance with the habit.
8. industrial or business routine: established business routine to show a particular event happened
9. industry custom as standard of care: may be offered to show adherence to or deviation from an industry-wide standard of care.

Question 5

discretion to exclude relevant evidence

Answer 5

Judge has discretion to exclude relevant evidence if its probative value is substantially outweighed by undue prejudice (emotional reaction, evidence admissible for one fact but not another), or is likely to confuse the issues, mislead jury, delay or waste of time.

Question 6

Discretion to exclude relevant evidence for public policy reasons

Answer 6

1. liability insurance
   admissible: prove negligence/ability to pay
   admissible: ownership/control, impeachment, or admission of liability

Subsequent remedial measure:

admissible: negligence, culpable conduct, product defect
admissible: ownership/control, rebut the claim that precautions were impossible, prove destruction of evidence.

settlement offers: only inadmissble to prove or disprove the validity or amount of disputed claim or impeach by prior inconsistent statement. (need indication of making a claim and claim must be indispute)

offer to pay or payment of medical expenses:
inadmissible: to prove culpable conduct but related statements are admissible

withdrawn guilty pleas: inadmissble

Question 7

character evidence in civil cases

Answer 7

generally inadmissible to prove they acted in conformity with that character on given occasion.

Question 8

exceptions to character evidence in civil cases

Answer 8

character is at issue: allowed if character is an element of claim/defense (defamation, child custody, negligent entrustment)

to prove conduct: prior sexual assault or child molestation: D’s prior acts of sexual assault or molestation are admissible to prove through opinion, reputation, or specific instances of conduct.

if litigant had relevant alternative it can come in

if a party testifies their credibility automatically is at issue

Question 9

Defendant’s character evidence in criminal cases

Answer 9

The prosecution cannot introduce character evidence to show propensity.

D can use reputation or opinion evidence to show innocence. not specific acts

However, if D does, P can rebut it with pertinent bad character evidence. Cross-exam of character witness (knowledge opinion, reputation, specific instances, but no extrinsic evidence) or bringing in own witness(reputation or opinion)

Prior bad acts not allowed unless for MIMIC

If D testifies, character automatically at issue

2. sexual assault/child molestation

Question 10

Exceptions to use specific instances in criminal cases

Answer 10

P can use character evidence (specific instances) to show:
Motive
Intent
Mistake
Identity (similarity and uniqueness)
Common plan or scheme

elements: to be admissible, 1 there must be sufficient evidence to support a jury finding that D committed the prior bad act and 2. probative value not substantially outweighed by danger of unfair prejudice

P must give notice explaining non-propensity purpose and reasoning

Question 11

victims in criminal cases

Answer 11

P cannot open door
but if
1. D offers evidence of victims character, P can rebut or
2. In homicide cases if D offers evidence that V attacked first, P can offer evidence of victim’s character for peacefulness

Question 12

type of character evidence allowed by prosecution

Answer 12

direct: reputation, opinion but not specific instances of conduct
cross: reputation, opinion, and specific instances of conduct to attack direct examination testimony

Question 13

character evidence

Answer 13

can be used to prove character when it is at issue or as circumstantial evidence of how a person probably acted.

can be proven through specific acts, opinion testimony or reputation

Question 14

rape victim’s past behavior

Answer 14

generally not admissible.
but in criminal cases, specific instances of victim’s sexual behavior is allowed to prove different source, injury, or other physical evidence,
specific instances between alleged victim and D are allowed to show consent

in civil allowed if probative value substantially outweighs danger of harm to victim and unfair prejudice to any party.
reputation allowed if victim places it in controversy

Question 15

character evidence in homicide for self defense cases

Answer 15

if D pleads self defense, evidence that victim was first aggressor opens the door for evidence that victim had good character for peacefulness.

Question 16

prior acts of sexual assault or child molestation

Answer 16

prior acts of sexual assault/molestation allowed in criminal or civil cases if D accused of it and disclosed 15 days before trial

Question 17

judicial notice

Answer 17

facts taken as true without presentation of evidence

can be indisputable facts that are either matters of common knowledge or capable of verification through sources of unquestionable accuracy

Question 18

who can request judicial notice

Answer 18

1. the court at its discretion

2. any party

Question 19

adjudicating and legislative facts

Answer 19

FR govern only adjudicative facts.

legislative facts (relating to legal reasoning and lawmaking) do not need to be common knowledgenor capable of undisputed verification

Question 20

mandatory v permission judicial notice

Answer 20

Must: federal and state law and official regulations of forums State and fed.

May: municipal ordinances and private acts/resolutions of congress. laws of foreign countries.

Question 21

real evidence

Answer 21

actual physical evidence can be direct, circumstantial, original or prepared.

Question 22

direct evidence

Answer 22

offered to prove facts about the object as an end of itself

permanent injury show injury itself

Question 23

circumstantial

Answer 23

facts about the object are proved as basis for an inference that other facts are true

Question 24

original (real evidence)

Answer 24

connection with transaction that is in question at trial

ex: murder weapon

Question 25

prepared

Answer 25

demonstrative evidence ex. sketches, models

Question 26

admissibility of real evidence

Answer 26

1. authentication through a. testimony that witness recognizes object or b. evidence of substantially unbroken chain of command 2. stipulation 3. oral statements only when important 4. condition of object: if condition is relevant must show it is in substially the same condition. 5. balancing test: some policy may outweigh the need to admit evidence (physical inconvenience, indecency, impropriety, undue prejudice.

Question 27

character v habit evidence

Answer 27

character: something general about a person and conveys a moral judgment habit: specific conduct and makes no moral judgment. must be repeated conduct

Question 28

testimonial Evidence: | competency

Answer 28

who can testify? 4 requirements 1. personal knowledge (does the fact testified to = the fact perceived? if not, PK is objection.) perception may be limited. 2. present recollection: cannot be based on a record the witness once knew but has now forgotten 3. ability to communicate 4. sincerity: oath or affirmation. judge and jurors cannot testify

Question 29

objections to form of testimony and questions

Answer 29

1. calls for a narrative: too broad 2. unresponsive: not answering the question 3. leading: cannot suggest answer in question (ok on cross but must be w/in scope of direct) 4. assumes facts not in evidence 5. argumentative (not really a question) needs for timely and specific objection

Question 30

witness use of documents during testimony

Answer 30

can be hearsay but can try to overcome by 1. refreshing recollection 2. recorded recollection

Question 31

opinion evidence

Answer 31

normally this is inadmissible

Question 32

opinion evidence | expert

Answer 32

1. helpful to the jury: specialized knowledge to reach conclusion average juror cannot figure out on their own. 2. witness must be qualified 3. witness must believe in opinion to a reasonable degree of certainty 4. opinion must be supported by a proper factual basis: personal knowledge, admitted evidence, inadmissible evidence reasonably relied upon. 5. the opinion must be based on reliable principles that were reliably applied. (peer-reviewed and published, tested, and subject to retesting, low error rate, and a reasonable level of acceptance if there are common sense issues w/ testimony it is inadmissible if W failed to consider pertinent evidence and alternative theories Learned treatise: admissible to prove anything stated therein if it is an accepted authority in field.

Question 33

evidence to support the W's credibility

Answer 33

inadmissible unless credibility is attacked first

Question 34

prior consistent statement is not hearsay and admissible for all purposes if

Answer 34

1. made before alleged bribe or | 2. rehabilitates witness credibility if attacked on some other non-chracter ground

Question 35

impeachment generally

Answer 35

1. is source of impeachment extrinsic evidence or testimony at this proceeding of witness being impeached? 2. if extrinsic, is it admissible given impeachment technique? Def: Any evidence other than testimony given at this proceeding by the witness being impeached. 3. any other foundation requirements

Question 36

impeachment evidence inadmissible to contradict on collateral matter

Answer 36

extrinsic evidence to contradict on collateral matter (not material to issues at hand and nothing re credibility)

Question 37

impeachment by prior inconsistent statement by witness

Answer 37

careful of hearsay. PIS is ok, but to show the truth? no. PIS who testifies at trial is not hearsay if given under oath at trial or depo. can be used to prove anything. otherwise, hearsay and inadmissible for truth. Extrinsic evidence of PIS cannot be used to impeach on collateral matter. Foundation requirement: extrinsic evidence admissible only if witness given opportunity to explain or deny.

Question 38

impeachment with evidence of bias, interest, motive

Answer 38

admissible Foundation requirement: extrinsic evidence admissible if witness given opportunity to explain or deny

Question 39

impeachment with prior convictions

Answer 39

crime involving dishonesty or false statement 10 years of less (felony/misdemeanors) no balancing for unfair prejudice. specific instances not allowed to show conduct by prosecution extrinsic ok

Question 40

crimes not involving dishonesty or false statement

Answer 40

felonies not involving dishonesty or false statement may be allowed unless probative value outweighed by unfair prejudice (extrinsic ok) misdemeanors: not involving dishonesty/false statements are inadmissible

Question 41

impeachment with nonconviction misconduct evidence bearing on truthfulness

Answer 41

Acts of misconduct that did not result in a conviction are admissible to impeach in both civil and criminal cases if the acts involved lying. Extrinsic evidence to prove the acts is inadmissible. Impeacher only may cross-examine witness about her misconduct.

Question 42

impeachment with reputation and opinion re: truthfulness

Answer 42

admissible

Question 43

impeachment of hearsay declaration

Answer 43

When a hearsay statement has been admitted in evidence, the credibility of the declarant may be attacked by any evidence that would be admissible for that the purpose if the declarant had testified as a live witness. no foundation requirement

Question 44

refreshing recollection

Answer 44

refreshing recollection (do not read out loud only to oneself) can use anything to refresh recollection, the opponent can inspect and offer into evidence items used to refresh

Question 45

recorded recollection

Answer 45

recorded recollection: if W cannot remember, must show a. the witness once had personal knowledge of the facts b. document was made by the witness/at their direction, or adopted it c. document was made at a time when facts were fresh in the witness's memory d. document was accurate e. witness now has insufficient recollection to testify re matters in doc.

Question 46

lay opinion

Answer 46

admissible if 1. rationally based on W's perception and 2. helpful to the trier of fact (more evidence than w/o) and cannot be based on scientific or other specialized knowledge.

Question 47

Hearsay

Answer 47

out of court statement used to prove the truth of the matter asserted. statement: verbal or written expression of a person or conduct intended to communicate (question not enough) truth of matter asserted: what is it offered to prove, and would jury be misled if OOC speaker were lying or mistaken? yes-->hearsay.

Question 48

statements that are not hearsay

Answer 48

1. statement has independent legal significance 2. effect on listener 3. circumstantial evidence of declarant's state of mind.

Question 49

declarant is an in court witness

Answer 49

can still be hearsay because non-offering party was unable to cross-examine when the statement was made.

Question 50

opposing party statement

Answer 50

not hearsay statement by a party or by someone whose statement is attributable to that party offered by a party opponent. The statement is not subject to personal knowledge requirement or opinion rule.

Question 51

vicarious opposing party statement

Answer 51

1. statement By authorized spokesperson of party or 2. Employee of party concerning matter within scope of employment and made during employment relationship. a. Authorization can be expressed or implied b. Adoptive opposing party statement (nonparty makes statement and party indicates belief in its truth) c. Co-conspirator statement (made during course and in furtherance eof conspiracy)

Question 52

what is a prior statement by testifying party

Answer 52

out of court statement from a declarant who now testifies at trial and is subject to cross-examination

Question 53

unavailable declarant statement is still admissible if

Answer 53

: (1) court exempts declarant from testifying due to privilege, (2) declarant is dead or sick, (3) proponent of statement cannot procure declarant’s attendance by process or other reasonable means, (4) declarant refuses to testify despite court order, or (5) declarant’s memory

Question 54

former testimony exception | requires unavailability

Answer 54

1. The party against whom the testimony is now offered had, during the earlier proceeding, an opportunity to examine that person and the motive to conduct that exam was similar to the motive the party has now, or 2. In a civil case, the party against whom the testimony is now offered was not present in the earlier proceeding but has a close privity-type relationship with someone who was a party to that earlier proceeding (a “predecessor in interest”) and who had an opportunity and a similar motive to examine the witness in that earlier proceeding. 3. Deposition testimony satisfies requirements

Question 55

declaration against interest exception requires unavailability

Answer 55

Hearsay statement is admissible if, at time it was made, it was against the financial interest of declarant or would have subjected declarant to criminal liability. personal knowledge knew it was against interest and no motive to misrepresent unavailable If the statement would have subjected declarant to criminal liability and is being offered in a criminal case (usually, offered by defendant to show that someone else committed to the crime), there must be corroborating evidence to admit the statement.

Question 56

dying declaration requires unavailability

Answer 56

hearsay statement by someone believing he is about to die and describing cause or circumstances leading to impending death is admissible in civil action or in homicide prosecution. Declarant need not die but must be unavailable.

Question 57

Excited utterance

Answer 57

Hearsay statement relating to startling event or condition is admissible when made while declarant was still under stress of excitement caused by event or condition. No need to show declarant unavailable

Question 58

present sense impression

Answer 58

hearsay statement is admissible if describing or explaining an event or condition made while declarant was perceiving the event or condition or immediately thereafter. No need to show unavailability.

Question 59

then existing physical or mental condition

Answer 59

Hearsay statement of declarant’s then-existing physical or mental condition or state of mind is admissible to show the condition or state of mind. But a statement describing a memory or belief is not admissible to prove the fact remembered or believed. Thus, “I remember/believe that the defendant shot the victim” is not admissible to prove defendant shot the victim. No need to show declarant unavailable. 1. If statement is admitted to prove speaker’s intention, then the same evidence can be used to infer future conduct consistent with the intention.

Question 60

statement of past/present physical condition made for medical diagnosis or treatment

Answer 60

hearsay statement by one person concerning the past or present mental or physical condition or its cause of that person or any other person is admissible if made for and pertinent to medical diagnosis or treatment. Declarant need not be unavailable.

Question 61

business records exception

Answer 61

Hearsay is admissible if it is (1) a record of events, conditions, opinions or diagnoses (2) kept in course of regularly conducted business activity (3) made at or near time of matters described (4) by person with knowledge of the facts in that record, (5) it was regular practice of business to make such record, (6) authenticated by testimony or written certification, and (7) opponent does not show that it is untrustworthy. No need to show declarant unavailable. (can cover multiple levels of hearsay)

Question 62

public records exception

Answer 62

Hearsay record of a public office is admissible if within one of the following categories: (1) record describes activities and policies of the office; (2) record describes matters observed pursuant to duty imposed by law (but not police reports in criminal cases); or (3) record contains factual findings resulting from investigation made pursuant to authority granted by law, unless opponent shows untrustworthy. In criminal case, prosecution cannot use (3). No need to show declarant unavailable

Question 63

judgment of previous conviction

Answer 63

Hearsay statement describing felony conviction (e.g., copy of the judgment of conviction) is admissible in both civil and criminal cases to prove any fact essential to the judgment, but when offered by prosecution for purposes other than impeachment, judgments against persons other than the accused are inadmissible. No need to show declarant unavailable.

Question 64

confrontation clause

Answer 64

Confrontation Clause (CC) of the US Constitution might make inadmissible an out-of court statement offered by the prosecution against defendant in a criminal case. The CC excludes an out-of-court statement if (1) declarant does not testify at the trial, (2) the statement is “testimonial”, and (3) defendant had no chance previously to cross-examine declarant about the statement

Question 65

authentication

Answer 65

Every item of non-testimonial evidence (e.g., writings, photos, guns) must be authenticated.

Question 66

ancient documents rule

Answer 66

Authenticity is established if (1) document is 20 years old or more, (2) does not on its face present any irregularities (e.g., erasures), and (3) was found in a place of natural custody (i.e., where you would expect such documents to be found).

Question 67

self-authentication writings

Answer 67

For certain writings, authentication is unnecessary. These include certified copies of public documents (deeds), acknowledged documents (i.e., documents where the original signature is attested before a notary to be valid), official publications (government pamphlets), newspapers, periodicals, business records, and trade inscriptions.

Question 68

authentication of non-unique items

Answer 68

To authenticate, proponent must lay chain of custody demonstrating that this is the specific item proponent claims it to be. Small break will not defeat authentication.

Question 69

best evidence rule

Answer 69

Applies only where evidence offered to prove the contents of a writing. (case turns on contents of legal instrument or knowledge obtained from writing) Writings = not only documents but also videos, photos, x-rays, audio recordings, computer disks, or any tangible collection of data. The rule requires original, but with many exceptions.

Question 70

Voluminous documents exception

Answer 70

can be summarized if originals are available for inspection

Question 71

if Best evidence rule applies, what can be used to prove contents of a writing

Answer 71

1. Original: computer printouts and certified copies are ok 2. Duplicates: usually admissible. A copy of original produced by same impression that produced the original (carbon copy) or by machine (photo copy or camera) 3. Testimony regarding contents of writing: may be admissible where original lost or destroyed unless bad faith by proponent of testimony but if there is a genuine question as to authenticity of original, need original

Question 72

privileges

Answer 72

attorney-client psychotherapist doctor-patient: states, diversity or fact pattern will confirm this

Question 73

corporation employee-corp. atty.

Answer 73

if the corporation authorized the employee/agent to communicate to the lawyer on behalf of the corporation.

Question 74

atty-client not applicable

Answer 74

where (1) professional services sought to further what client knew or should have known to be a crime or fraud, or (2) client puts the legal services at issue, as in a malpractice suit against the lawyer, or (3) two or more parties consult an attorney on a matter of common interest and the communication is offered by one of these parties against another

Question 75

no doctor/patient privilege

Answer 75

Privilege does not apply (1) where the patient puts his physical condition in issue, as in a personal injury suit; (2) where physician’s services sought to aid in crime or fraud or to escape capture after a crime or tort; (3) in case alleging breach of duty arising out of physician-patient relationship, as in a malpractice action. Some states (including California) do not recognize the privilege in criminal cases

Question 76

spousal testimonial privilege

Answer 76

permits witness to refuse to testify against his/her spouse as to anything. Applies only in criminal cases. 1. Can apply to matters occurring before or during marriage 2. Witness owns the testimonial privilege

Question 77

spousal confidential communication privilege

Answer 77

protects confidential spousal communications during the marriage. Applies in both criminal and civil cases. 1. Communication privilege applies if communication made during the marriage in reliance of the intimacy of the marital relationship 2. Both spouses own the privilege

Question 78

requirements/exceptions to marital privileges

Answer 78

For both privileges, there must be a legally valid marriage. Neither privilege applies in civil action between spouses or in criminal prosecution where one spouse is charged with a crime against the other spouse or one of their kids

Question 79

statement of personal or family history

Answer 79

statement of unavailable declarant concerning births, marriages, divorces, relationship, genealogical status, etc are admissible if 1. declarant is member of the family in question or intimately associated with it and 2. statements are based on the declarant's personal knowledge of the facts or knowledge of family reputation

Question 80

statement offered against party procuring declarant's unavailability

Answer 80

unavailable witness' statement is admissible when offered against party who has engaged or acquiesced in wrongdoing that intentionally procured the declarant's unavailability

Question 81

hearsay catchall

Answer 81

1. sufficient guarantees of trustworthiness a. look a totality of circumstances in which statement was made b. any evidence that corroborates the statement 2. statement must be strictly necessary 3. proponent must give reasonable notice a. substance of the statement b. name of declarant

Question 82

what is reputation evidence allowed for

Answer 82

allowed for: 1. character 2. personal or family history 3. land boundaries 4. community's general history

Question 83

presumptions

Answer 83

rule: requires inference from an ascertained set of facts. and shifts burden of production. destroying presumptions: when adversary produces evidence to rebut the presumption no mandatory presumptions in criminal cases.