Evidence

Question 1

What is relevant evidence?

Answer 1

evidence that makes an existence of any fact more probable

• court can exclude if:
  
  • probative value is outweighed by the danger of unfair prejudice
  • confusion of the issues
  • misleading the jury
  • undue delay, waste of time

Question 2

Can a prior similar event that does not relate be admitted?

Answer 2

YES!

• causation
• similar accidents or injuries caused by the same
  event
• similar acts used to prove:
  
  • intent
  • habit
  • industrial custom
  • routine

Question 3

name exceptions of evidence not relating to the particular event that are policy based

Answer 3

liability insurance

• used to prove:
  
  • ownership or control

subsequent remedial measures

• used to prove:
  
  • ownership or control
  • destruction of evidence

Settlement offers

withdrawn guilty pleas

Question 4

Character evidence during a criminal case on direct examination can….

Answer 4

be intimated by the defense NOT the prosecution

Question 5

Character evidence during a criminal case during cross examination of a party can be

Answer 5

introduced by defendant used to show good character and prove innocence

Question 6

character evidence during a criminal case during cross-examination of both a party and a witness can be

Answer 6

used for impeachment

Question 7

Character evidence during a civil case during direct examination…

Answer 7

not admissible UNLESS character is DIRECTLY in issue

child custody
defamation

Question 8

character evidence during a civil case during cross examination for a party or witness

Answer 8

can only be used for impeachment

Question 9

hearsay

Answer 9

an out of court statement made to offer the truth of the mater asserted.

Question 10

how are hearsay exceptions divided?

Answer 10

declarant unavailable
vs
all others

Question 11

what does a declarant’s unavailabilty result from?

Answer 11

privilege 
refusing to testify 
lack of memory
death or physical mental illness 
absent beyond the reach of the court's subpoena power and the proponent of the statement has been unable to procure attendant or testimony

Question 12

what hearsay exceptions require the declarant to be unavailable?

Answer 12

former testimony

statement against interest

dying declarations

statement of personal or family history

statement offered against party procuring declarant’s unavailability

Question 13

former testimony exception

Answer 13

given as witness at a trial, hearing or lawful deposition

offered against a party who had an opportunity and similar motive to develop it by direct cross or redirect examination

Question 14

statements against interest exception

Answer 14

reasonable person in the declarant’s position would have made only if the person believed it to be true

contrary to declarant’s proprietary or pecuniary interest

supported by corroborating circumstances that clearly indicate its trustworthiness

Question 15

dying declaration exception

Answer 15

statement made by declarant believing that declarant’s death was imminent

statement about its cause or circumstances

Question 16

what are the hearsay exceptions that do not require the declarant to be unavailable?

Answer 16

present state of mind or physical condition

excited utterance

present sense impressions

business records

public records

Question 17

present state of mind or physical condition exception

Answer 17

must be then-existing state of mind or emotional, sensory, or physical conditions

not including a statement of memory or belief

Question 18

excited utterance exception

Answer 18

statement relating to a startling event or condition

made while under the stress of excitement that it caused

Question 19

present sense impressions exception

Answer 19

statement describing or explaining an event or condition

made while or immediately after the declarant perceived it

Question 20

business records exception

Answer 20

made at or near the time by someone with knowledge

kept in the course of a regularly conducted activity of a business or organization

making the record was a regular practice of that activity

shown by a custodian’s testimony or by certification

the source nor the method of preparation indicate lack of trustworthiness

Question 21

public records exception

Answer 21

records sets out the offices activities

observed while under a legal duty to report

neither the source of information nor other circumstances indicate a lack of truth-worthiness

Question 22

past recollection recorded exception

Answer 22

a record that:

is on a mater the witness once knew about but nw cannot recall

was made or adopted by the witness when the matter was fresh in the witness’s memory
AND
accurately reflects the witness’s knowledge

May be read into evidence

may only be received as an exhibit if offered by an adverse party

Question 23

mindmap for documents

Answer 23

is it relevant

has it been authenticated?

best evidence rule?

hearsay?

Question 24

authentication

Answer 24

the document is what the proponent claims it to be

Question 25

is a testimonial speaker needed with writings?

Answer 25

yes, to prove that the writing was made, signed or adopted by the particular relevant person.

Question 26

is a testimonial speaker needed with photos?

Answer 26

yes, they must be ID'd by a witness as both a portrayal of relevant facts and a correct representation of facts the witness needs to be familiar with the scene or object depicted

Question 27

what documents are self-authenticating?

Answer 27

OIL CANS official publications- issued by a public authority instruments- negotiable and commercial paper label, tag, trademark affixed on item in regular course of business certified public documents-m by clerk or court that had custody acknowledged documents signed before a notary, sworn to truth, content, and execution (except wills) newspapers and periodicals with reasonable wide circulation sealed documents (government certified)

Question 28

best evidence rule

Answer 28

ONLY applies to documents requires the "original writing, recording or photograph o prove its content" ONLY applies if the contents of the writing are at issue

Question 29

mind map for witnesses

Answer 29

competency relevance opinion - lay witness - expert witness character impeachment privileges hearsay

Question 30

competency

Answer 30

``` a witness must have the capacity to: observe, recollect communicate appreciate he obligation to speak truthfully ```

Question 31

witness must have....

Answer 31

personal knowledge AND must declare they will testify truthfully

Question 32

what are the two different kinds of opinion evidence?

Answer 32

lay and expert

Question 33

lay opinion testimony

Answer 33

generally inadmissible may be allowed if no better evidence exists must be: based on the witness's perception helpful for a clear understanding of act at issue AND not based on scientific, technical, or other specialized knowledge

Question 34

expert testimony

Answer 34

subject matter: scientific technical other specializations witness qualities as an expert opinion backed with reasonable certainty opinion supported by a proper factual basis: - personal knowledge - facts made known at trial - facts made known outside of court - need not to be admissible in court - of the kind that are reasonably relied upon by experts in the field

Question 35

character evidence

Answer 35

Criminal Trials: - not allowed to prove conformity with the party's character - allowed for other purposes: - motive - opportunity - intent - preparation - common scheme/ plan - knowledge identity - absence of mistake or accident Civil Trials: - not allowed unless character is at issue - ex: child custody

Question 36

impeachment

Answer 36

to cast an adverse reflection on a witness's truthfulness

Question 37

two methods of impeachment

Answer 37

cross-examination extrinsic evidence

Question 38

how can you impeach a witness through cross-exaimination?

Answer 38

prior inconsistent statements bias or interest criminal convictions

Question 39

how can you impeach a witness through extrinsic evidence?

Answer 39

admissible only if the witness has the chance to explain the statement and an adverse party has he chance to examine the witness about it or if justice requires

Question 40

crimes involving dishonesty

Answer 40

fraud or perjury no time limitation on how old the crime is the court has no discretion to exclude these crimes

Question 41

felonies not involving dishonesty

Answer 41

the court does have discretion to exclude the conviction ``` must not be too remote - generally over 10 years since: - the date of conviction OR - release from confinement imposed for the conviction - the conviction is excluded ```

Question 42

what is the balancing test that the court must weigh?

Answer 42

the government must show the probative value as impeachment is not out-weighed by its prejudicial effect

Question 43

extrinsic evidence: prior bad acts

Answer 43

interrogation about prior bad acts is admissibe within the court's discretion must be probative of truthfulness

Question 44

what happens if a witness denies the prior bad act used in extrinsic evidence?

Answer 44

the cross-examiner CANNOT refute the testimony by calling other witnesses or by producing other evidence

Question 45

extrinsic evidence: reputation evidence

Answer 45

a witness may be impeached by showing poor reputation for truthfulness DONE BY: calling another witness from the community where the impeached witness lives or from business circle the impeaching witness may also state their personal opinion based on their relationship with the witness

Question 46

TRUE OR FALSE: | impeachment IS ALLOWED on a collateral matter, but impeachment is NOT allowed of a hearsay declarant

Answer 46

FALSE impeachment is NOT allowed on a collateral matter BUT impeachment IS allowed of a hearsay declarant

Question 47

extrinsic evidence real evidence

Answer 47

must be relevant object must be authenticated that it is what the proponent claims it to be

Question 48

attorney-client privilege

Answer 48

CLIENT MAY REFUSE TO DISCLOSE AND TO PREVENT ANY OTHER PERSON from disclosing confidential communications made for the purpose of rendition of professional legal services to the client includes the attorney and its representatives only the client can waive the privilege

Question 49

physician, psychotherapist or social worker-patient privilege

Answer 49

confidential communications made for the purpose of diagnosis or treatment of the patient's physical, mental or emotional condition

Question 50

what are the two types of spousal privilege?

Answer 50

marital communication spousal testimony

Question 51

marital communication privilege

Answer 51

provides that EITHER spouse has a privilege to refuse to disclose and to prevent her spouse from disclosing a confidential communication made between spouses while they were husband and wife

Question 52

spousal testimony privilege

Answer 52

a SPOUSE MAY NOT BE CALLED AS A WITNESS by the prosecution against his spouse in a criminal case and may not be compelled to testify against his spouse in any criminal proceeding including those where the spouse is not the defendant