Evidence Flashcards

Question

Public Policy Exclusions: Disputed Claim Required

Answer 1

The exclusionary rule only applies if there is a claim that is disputed (at time of settlement discussion) either as to (1) validity or (2) amount of damages.

Answer 2

The following are inadmissible: • Offer to plead guilty—cannot be used against the defendant in the pending criminal case or in subse- quent 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 • Withdrawn guilty plea—cannot be used against the defendant in the pending criminal case or in subsequent civil litigation based on the same facts.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”)—cannot be used against the defendant in subsequent civil litigation based on the same facts. • Statements of fact made during any of the above plea discussions. BUT, a plea of guilty (not withdrawn) is admissible in subsequent litigation based on the same facts under the rule of party admissions (discussed in the Hearsay module).

Answer 3

Evidence that a party has paid or offered to pay an accident victim’s hospital or medical expenses is inadmissible to prove liability. Policy: To encourage charity. No need to show disputed claim—trying to reward generosity. BUT: statements made in connection with an offer to pay medical expenses, unlike statements made in connection with a settlement offer, are admissible. An offer to pay medical expenses is essentially a unilateral and unconditional humanitarian gesture. Thus, negotiation and discussion are tangential to the offer itself. Consequently, there is little reason to protect from disclosure such statements as the defendant's careless admission ("letting your driver leave the bar drunk last night") even though it was accompanied by an offer to pay the passenger's medical expenses.

Answer 4

Character evidence refers to a person’s general propensity or disposition (e.g., honesty, fairness, peacefulness, or violence). Potential purposes for offering: • Person’s character is a material element in the case. • To prove conduct in conformity with character at the time of the litigated event, a/k/a character as circumstantial evidence of conduct on a particular occasion. • Witness’s bad character for truthfulness to impeach credibility (discussed in Impeachment module).

Answer 5

Evidence of the defendant’s character to prove con- duct in conformity is not admissible during the prosecution’s case-in-chief. However, defendant, during the defense, may introduce evidence of a relevant character trait (by reputation or opinion testimony of a character witness) to prove conduct in conformity, thereby opening the door to rebuttal by the prosecution. Prosecution’s Rebuttal** If the defendant has “opened the door” by calling character witnesses, the prosecution may rebut: (1) By cross-examining defendant’s character wit- nesses with “Have you heard” or “Did you know” questions about specific acts of the defendant that reflect adversely on the particular character trait that the defendant has introduced (prosecution must have good faith basis for the question); purpose: to impeach character witness’s knowledge; and/or (2) By calling its own reputation or opinion witnesses to contradict the defendant’s witnesses.

Answer 6

Criminal defendant may introduce evidence of victim’s violent character to prove victim’s conduct in conformity, i.e., as circumstantial evidence that victim was the first aggressor. Proper method: Character witness may testify to victim’s reputation for violence and may give opinion. Prosecution Rebuttal Once defendant has introduced evidence of victim’s violent character, prosecution may rebut with opinion or reputation testimony regarding: (1) victim’s good character for peacefulness, and/or (2) defendant’s bad character for violence. Separate Rule of Relevance 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 the defendant’s state of mind—fear—to help prove that he acted reasonably in responding as he did to the victim’s aggression.

Answer 7

Inadmissible to Show Conformity In civil cases, character evidence is generally inadmissible to prove conduct in conformity. Admissible When Character Directly in Issue Evidence of person’s character is admissible in civil action where such character is an essential element of a claim or defense (provable by reputation, opinion, and specific acts). Only a few situations: • Negligent hiring or entrustment • Defamation (libel or slander) • Child custody

Answer 8

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 defen- dant’s bad character he is more likely to have commit- ted the crime currently charged. ``` BUT, if defendant’s other crimes or bad acts show something specific about the crime charged—some- thing more than mere bad character—such evidence may be admissible as evidence bearing on guilt. Most common non-character purposes: • Motive • Intent • Mistake or accident (absence of) • Identity • Common scheme or plan ``` Method of Proof of Independently Relevant Misconduct (1) By conviction or (2) by other evidence (witnesses, etc.) that proves the crime or act occurred. Conditional relevancy standard—prosecution need only produce sufficient evidence from which a rea- sonable juror could conclude that defendant commit- ted the other crime. In criminal cases, prosecution must give pretrial no- tice of intent to introduce MIMIC evidence. In all cases, court must also weigh probative value vs. prejudice and give limiting instructions if MIMIC evidence is ad- mitted. If relevant, MIMIC evidence can also be used in civil cases, such as tort actions for fraud or assault.

Answer 9

In a case alleging sexual assault or child molestation, prior specific sexual misconduct of the defendant is admissible as part of the case-in-chief of the prosecu- tion (in a criminal case) or of the plaintiff (in a civil ac- tion) for any relevant purpose, including defendant’s propensity for sex crimes, i.e., conduct in conformity with character.

Answer 10

A showing must be made that the writing is authentic (genuine), i.e., that it is what it purports to be. This is the process of authentication. Standard for Authentication Conditional relevancy standard—document is admis- sible if court determines there is sufficient evidence from which a reasonable juror could conclude docu- ment is genuine. Methods of Authentication Issue: Whether X is the author of a document. • Witness’s personal knowledge: Witness observed X sign document. • Proof of handwriting - Lay opinion: Lay witness testifies to opinion that X wrote document on basis of familiarity with X’s handwriting as result of experience in normal course of affairs. ~ Lay witness cannot become familiar with X’s handwriting for the sole purpose of testifying. [Contrast voice identifications: the witness can become familiar with the speaker’s voice under any circumstances.] - Expert comparison opinion: Handwriting ex- pert testifies to opinion that X wrote document on basis of comparison between document and genuine sample (exemplar) of X’s handwriting. - Jury comparison: Jury compares document with exemplar of X’s handwriting. • Ancient document rule: Authenticity may be inferred if document is: - At least 20 years old - Facially free of suspicion - Found in a place of natural custody • Solicited reply doctrine: Document can be authenticated by evidence that it was received in response to a prior communication to the alleged author. Authentication of Photographs Witness may testify on the basis of personal knowl- edge that the photograph is a “fair and accurate repre- sentation” of the people or objects portrayed. Self-Authenticating Documents Presumed authentic—no need for foundation testimony: • Official publications • Certified copies of public or private records on file in public office • Newspapers or periodicals • Trade inscriptions and labels • Acknowledged documents • Commercial paper • Certified business records (with reasonable written notice to adverse party)

Answer 11

BER = misnomer. Better described as the “original writings” rule. Rule: In order to prove the contents of a writing, recording, or photograph, the original must be pro- duced. ``` Key inquiries: • What does it mean to “prove the contents” of a writing? • To what evidence does BER apply? • What is an “original”? • What are the exceptions to the BER? ``` Definition A party who seeks to prove the contents of a writing (includes sound recordings, X-rays, films), must either produce the original writing or provide an acceptable excuse for its absence. If court finds the excuse is acceptable, the party may then use secondary evi- dence—oral testimony or a copy. When Best Evidence Rule Applies Two principal situations: (1) The writing is a legally operative document; i.e., the writing itself creates rights and obligations. (2) Witness is testifying to facts that she learned solely from reading about them in a writing. When Best Evidence Rule Does NOT Apply When a witness with personal knowledge testifies to a fact that exists independently of a writing that records the fact. What Qualifies as the “Original” Writing? • The writing itself; any counterpart intended to have the same effect; any negative of film or print from the negative; computer print-out. • Duplicate: any counterpart produced by any me- chanical means that accurately reproduced the original (e.g., photocopy, carbon copy). Rule on duplicates: Duplicate is admissible to same extent as original UNLESS it would be unfair (e.g., photocopy of fuzzy fax), or genuine question is raised as to authenticity of original. Excuses for Non-Production of Original • Lost or cannot be found with due diligence • Destroyed without bad faith • Cannot be obtained with legal process Court must be persuaded by preponderance of the evidence that excuse has been established; second- ary evidence is then admissible (e.g., testimony based on memory, handwritten copy). “Escapes” • Voluminous records can be presented through a summary or chart, provided the original records would be admissible and they are available for inspection. • Certified copies of public records. • Collateral documents.

Answer 12

Two Basic Requirements (1) Personal knowledge. (2) Oath or affirmation. “Dead Man Statute” ``` In general (Multistate rules): Witness is not ordinarily incompetent merely because she has an interest—a direct legal stake—in outcome of the litigation. But, under a typical state “Dead Man’s Act,” in a civil action, an interested party is incompetent to testify in support of her own interest against the estate of a decedent concerning communications or transactions between the interested party and the decedent. ``` Under the FRE, there is no “dead man’s rule.” Thus, on Multistate exam, witnesses ordinarily are not incompetent on this ground. But, if question explicitly states that the particular jurisdiction in which the case arises has a “dead man’s statute,” apply the rule above.

Answer 13

``` Leading Questions Form of question suggests the answer (e.g., “Isn’t it a fact that . . . .”; or unevenly balanced alternatives). Generally allowed on cross-examination of witness. Generally NOT allowed on direct examination of wit- ness, unless: • Preliminary/introductory • Youthful/forgetful witness • Hostile witness • Adverse party ``` Cross-Examination Party has a right to cross-examine any opposing wit- ness who testifies at the trial. Significant impairment of this right will result, at minimum, in striking of witness’s testimony. Proper subject matter: • Matters within the scope of direct examination, and • Matters that test the witness’s credibility.

Answer 14

Refreshing Recollection Basic rule: Witness may not read from prepared mem- orandum; must testify on basis of current recollection. But if witness’s memory fails him, he may be shown a memorandum (or any other tangible item) to jog his memory. Safeguards Against Abuse If witness’s recollection is refreshed during testimony, adversary has right: • To inspect the memory-refresher • To use it on cross-examination • To introduce into evidence If refreshing happens before witness testifies, the adversary is not entitled to these options but the judge has discretion to allow it. Recorded Recollection (Hearsay Exception) Foundation for Admissibility of Contents of Document • Showing document to witness fails to jog mem- ory. • Witness had personal knowledge at former time. • Document was either made by witness, or ad- opted by witness. • Making or adoption occurred when event was fresh in witness’s memory. • Witness can vouch for accuracy of document when made or adopted.

Answer 15

~Lay Witnesses Admissible if: • Rationally based on witness’s perception (person- al knowledge). • Helpful to jury in deciding a fact. • Not based on scientific, technical, or otherwise specialized knowledge that would require expert testimony. ~Expert Witnesses Qualifications Education and/or experience. Proper Subject Matter Scientific, technical or other specialized knowledge that will be helpful to jury in deciding a fact. Basis of Opinion Expert must have opinion based on reasonable degree of probability or reasonable certainty, and three permissible data sources: (1) Personal knowledge (e.g., treating physician). (2) Other evidence in the trial record (testimony by other witnesses, exhibits (medical reports, X-rays))—usually made known to expert by hypothetical question. (3) Facts outside the record if of a type reasonably relied upon by experts in the particular field in forming opinions. Reliability To be admissible, expert opinion must be sufficiently reliable. Court serves as “gatekeeper,” and will use four principal factors to determine reliability of prin- ciples and methodology used by expert (all types) to reach opinion (Daubert)—“TRAP”: Testing of principles or methodology Rate of error Acceptance by experts in the same discipline Peer review and publication Learned Treatise in Aid of Expert Testimony (Hearsay Exception) Treatises, periodicals, or pamphlets may be used during expert testimony as follows. On direct examination of party’s own expert: Rele- vant portions of treatise, periodical, or pamphlet may be read into evidence as substantive evidence (to prove truth of matter asserted) if established as reli- able authority. On cross-examination of opponent’s expert: Read into evidence to impeach and contradict opponent’s expert. Also comes in as substantive evidence. Read into evidence only: The learned treatise may not be introduced as an exhibit. Ultimate Issues Opinion testimony (lay or expert) is permissible even if it addresses an “ultimate issue” in the case (e.g., “X was drunk,” “insane”, “That’s X’s signature on the check”). But: Criminal cases: “Ultimate issue” is still proper objection if expert seeks to give direct opinion that defendant did or did not have relevant mental state (e.g., “D’s insanity prevented him from understanding that he was shooting at a human being”).

Answer 16

- Bolstering Own Witness In general, not allowed until after witness’s credibility has been attacked. Exception—prior identification of a person: Might seem like hearsay (out-of-court statement offered to prove truth of statement), but prior identification by trial witness is not barred by hearsay rule. It is labeled as “exclusion” from hearsay, and comes in as substantive evidence. Reliability factors: identification was closer in time to event, and witness on stand can be cross-examined. -Impeaching Own Witness Permitted, without limitation.

Answer 17

Overview: (1) Prior inconsistent statements (2) Bias, interest, or motive to misrepresent (3) Sensory deficiencies (4) Contradiction Methods showing general bad character for truthfulness: (5) Bad reputation or opinion about witness’s character for truthfulness (6) Criminal convictions (7) Bad acts (without conviction) that reflect adversely on witness’s character for truthfulness For each method, consider: • Can impeaching fact be proven by extrinsic evidence (documentary evidence or testimony from other witnesses), or is party bound by witness’s answers to impeaching questions? • Assuming extrinsic evidence is permissible, must witness first be confronted with impeaching fact as a prerequisite to introduction of extrinsic evi- dence? Prior Inconsistent Statements Any witness may be impeached by showing that on some prior occasion, she made a material statement (orally or in writing) that is inconsistent with her trial testimony. Purpose: To suggest trial testimony is false or mistaken. When Admissible as Substantive Evidence Prior inconsistent statements made under oath and as part of a formal hearing, proceeding, trial, or deposition may be admitted **both for impeachment and as substantive evidence**—to prove the truth of the matter asserted in the prior inconsistent statement. Confrontation/Extrinsic Evidence Issue Confrontation timing is flexible. Not required to immediately confront witness. But after proof by extrinsic evidence, witness must be given an opportunity at some point to return to stand to explain or deny the prior inconsistent statement, but not necessarily be- fore proof with extrinsic evidence. Exception to confrontation requirement: No confrontation required and no opportunity to explain need be given if witness is opposing party. Purpose: To suggest testimony is false, slanted, or mis- taken in party’s favor. Confrontation/extrinsic evidence issue: • Must witness be confronted with alleged bias while on the stand? • Within court’s discretion. • If confrontation requirement is met, may bias be proven by extrinsic evidence? • Yes, court has discretion to permit extrinsic evidence even if witness admits the bias. Sensory Deficiencies Anything that could affect witness’s perception or memory. Confrontation required? No. Extrinsic evidence allowed? Yes. Contradiction Cross-examiner, through confrontation of witness, may try to obtain admission that she made a mistake or lied about any fact she testified to during direct examination. If the witness admits the mistake or lie, she has been impeached by contradiction. However, if she sticks to her story, the issue becomes whether extrinsic evidence may be introduced to prove the contradictory fact. Rule: Extrinsic evidence is not allowed for the purpose of contradiction if the fact at issue is collateral. A fact is collateral if it has no significant relevance to the case or to the witness’s credibility. Bad Reputation or Opinion about Witness’s Character for Truthfulness Call a character witness to testify that target witness has bad reputation for truthfulness, or that character witness has low opinion of target witness’s character for truthfulness. Purpose: To suggest that target witness is not telling the truth on the witness stand. Confrontation required? No. Extrinsic evidence allowed? Yes. **A specific act of misconduct offered to attack the witness's character for truthfulness can be elicited only on cross-examination of the witness. If the witness denies it, the cross-examiner cannot refute the answer by calling other witnesses or producing other evidence. Criminal Convictions Purpose: To suggest testimony is false. Rationale: Person who has been convicted of a crime is more likely to lie under oath than is a person with an unblemished record. Types of crimes and court’s discretion: • Any crime (felony or misdemeanor) involving dishonesty or false statement may be used to impeach, and the court has NO DISCRETION to exclude such convictions. • If a conviction does not involve dishonesty or false statement, it must be a felony, and the court has discretion to exclude (generally Rule 403 balancing test—probative value not substantially outweighed by unfair prejudice; stricter balancing test when witness is criminal defendant—probative value must outweigh unfair prejudice). Must not be too remote: Generally the conviction or release from prison (whichever is later) must be within 10 years of the witness’s testimony. Court can override this if probative value substantially outweighs prejudicial effect (rare). Method of proof: (1) As witness to admit prior convic- tion, OR (2) introduce record of conviction (extrinsic). Not required to confront witness prior to introduction of record of conviction. Effect of pardon: Conviction is not admissible if the conviction was subject to a pardon, annulment, or oth- er equivalent procedure, and: • The pardon was based on a finding of rehabili- tation and witness has not been convicted of a subsequent felony, or • The pardon was based on a finding of innocence (irrespective of any subsequent convictions). Prior Bad Acts Involving Untruthfulness Confrontation on cross-examination is the only per- missible means. No extrinsic evidence is permitted. Cross-examiner must have good-faith basis, and ability to inquire lies in court’s discretion.

Answer 18

Opponent may use any of the impeachment methods to attack the credibility of a hearsay declarant.

Answer 19

Showing Witness’s Good Character for Truthfulness When allowed: Opponent used methods of attacking witness’s general bad character (bad reputation or opinion; convictions; bad acts). How: Character witness provides reputation or opinion testimony about witness’s good character for truthfulness. Prior Consistent Statements When allowed: • Witness is charged with fabrication based on a recent motive or improper influence, and the state- ment was made before the motive arose; OR • The statement rehabilitates a witness impeached on another ground, such as prior inconsistent statement or faulty memory. Bonus: Prior consistent statements admissible to re- habilitate are also admissible as substantive evidence; i.e., for truth of matter asserted (hearsay exclusion).

Answer 20

Two-Part Definition • Out-of-court statement of a person (oral or writ- ten), AND • Offered to prove the truth of the matter asserted in the statement. Hearsay Rule Hearsay is inadmissible unless an exception applies. Rationale: So what’s wrong with hearsay? Inability of the opponent to cross-examine the declarant (out-of- court speaker or author) at the time the statement was made. Declarant’s credibility is at issue (perception, memory and sincerity). Hearsay Within Hearsay Multiple hearsay is admissible if each statement meets some hearsay exception.

Answer 21

Some out-of-court statements may look like hearsay at first glance, but are not hearsay if they are not offered to prove the truth of the matter asserted in the statement. An out-of-court statement may be relevant to some issue simply because it was spoken (or written). If offered for some other purpose, credibility of the declarant is irrelevant. On the issue of whether the statement was spoken, the witness on the stand can be cross-examined; or if the statement was in writing, it can be examined as an exhibit. The major nonhearsay purposes are as follows. - Verbal Act (Legally Operative Facts) Other verbal acts: Contract offer or cancellation, making gift, bribe, perjury, fraud, defamation, words accompanying ambiguous acts (e.g., D is charged with theft of X’s car; D testifies, “As X handed me the keys, he said I could have the car for the weekend.”). - Effect on Listener or Reader - Circumstantial Evidence of Declarant’s State of Mind

Answer 22

Certain out-of-court statements are specifically excluded from the definition of hearsay. Thus, even if offered for their truth, they are admissible nonhearsay. They are not admissible as a hearsay “exception”; they are simply not hearsay at all. Prior Statements of Testifying Witnesses General rule: A witness’s own prior statement, if offered to prove the truth of the matter asserted in the statement, is hearsay and is inadmissible unless an exception applies. However, the following prior statements of a testifying witness are excluded from the definition of hearsay: • Witness’s prior statement of identification. • Witness’s prior inconsistent statement, IF made under oath and during a formal trial, hearing, proceeding, or deposition. • Witness’s prior consistent statement offered to rehabilitate the witness (see Impeachment module for admissibility of prior consistent statements). Opposing Party’s Statements Any statement made by a party (plaintiff or defendant) is admissible against that party. Traditionally called “admissions.” Theory: Party ought to bear the consequences of what she says. Can explain to jury, and cannot complain about inability to cross-examine self. Reminder: Called “nonhearsay” or “not hearsay.” Adoptive statements: Party may adopt the statement of someone else (for example, by remaining silent in the face of an accusation that a reasonable person would deny). Vicarious opposing party statements: Certain state- ments by some other person are admissible against a party because of the relationship between them. These include: • Statement by agent/employee admissible against principal/employer if statement concerns matter within scope of agency/employment and is made during the agency/employment. • Statement of co-conspirator admissible against party if made during and in furtherance of the conspiracy.

Answer 23

``` Grounds of Unavailability • Death or illness • Absence from jurisdiction • Privilege • Stubborn refusal • Lack of memory ``` Former Testimony The former testimony of a now-unavailable witness, if given at a former proceeding or in a deposition, is admissible against a party who, on the prior occasion, had an opportunity and motive to cross-examine or develop the testimony of the witness. Issue in both proceedings must be essentially the same. Theory: Reliability assured by cross-examination on prior occasion; however, we prefer live testimony, so witness must now be unavailable. Statements Against Interest An unavailable declarant’s statement against his: • Pecuniary interest (money) • Proprietary interest (property) • Penal interest (exposure to criminal liability) Theory: Not going to lie when making a personally damaging statement. Distinguished from opposing party statements: • Must be against interest when made. • Any person (not merely party) can make statement against interest. • Personal knowledge is required. • Declarant must be unavailable. Limitation in Criminal Cases In criminal cases, statements against penal interest must be corroborated. Dying Declarations Statement made under a belief of impending and cer- tain death by a now-unavailable declarant concerning the cause or surrounding circumstances of the declar- ant’s death. Theory: No one wants to die with a lie on her lips. Type of case: • Criminal: Homicide only. • Civil: All types.

Answer 24

Rule 803 exceptions are sufficiently reliable, and do NOT require unavailability. -Excited Utterance Statement concerning a startling event and made while declarant is still under the stress of excitement caused by the event. Theory: Excitement suspends one’s capacity to fabricate. -Present Sense Impression Description of an event made while the event is occurring or immediately thereafter. Theory: Declarant has no time to fabricate. -Then-Existing Mental or Physical Condition (Present State of Mind) Contemporaneous statement concerning declarant’s own present state of mind, feelings, emotions, or phys- ical condition. Theory: Contemporaneous statement about matter as to which declarant has unique knowledge. Includes declarations of intent: “State of mind” includes declarant’s intent to do something in the future, including the intent to engage in conduct with another person. Includes present physical condition: Statement made to anyone about declarant’s current physical condition. -Statement for Purposes of Medical Diagnosis or Treatment Statement made to anyone (but usually involves med- ical personnel) concerning past or present symptoms or general cause of condition for the purpose of treat- ment or diagnosis. Theory: Motive to be honest and accurate to get good medical assessment. Note: Statements (1), (2), and (3) would also be ad- missible if Plaintiff was speaking to a physician who was retained solely for the purpose of testifying as an expert witness. “Medical diagnosis” includes diagnosis for the purpose of giving an expert opinion. -Business Records (Records of Regularly Conducted Activity) Elements: • Records of any type of business or organization (can be nonprofit) • Made in the regular course of business (germane to business) • The business regularly keeps such records • Made at or near the time of the event recorded • Contents consist of information observed by em- ployees of the business (must have business duty to report) • A statement by an outsider is only admissible if it falls within an independent hearsay excep- tion (otherwise, it’s inadmissible hearsay within hearsay) Theory: Businesses depend on accurate, up-to-date record-keeping, and accuracy is likely when employees are under a business duty to make such records. Useful as substitute for in-court testimony of employees. Proving business records foundation: • Call sponsoring witness to testify to the elements of business records hearsay exception; witness need not be author of report—can be records custodian or any other knowledgeable person within the business; OR • Affidavit or unsworn declaration attesting to elements of business records hearsay exception. -Public Records Records of a public office or agency setting forth: • The activities of the office or agency. • Matters observed pursuant to a duty imposed by law. • Findings of fact or opinion resulting from an investigation authorized by law. Exception: Police reports and investigatory findings are not admissible against the defendant in a criminal case. Nor is the prosecution in such cases allowed to introduce a police report against the defendant under the alternative theory of business records. ``` -Other Exceptions See Witnesses module for discussion of recorded recollection and learned treatise exceptions. Also be sure to review the less-frequently tested exceptions covered in your outline. ``` -Hearsay and the Confrontation Clause Regardless of whether a hearsay exception is satisfied, the Sixth Amendment right of confrontation prohibits the use of “testimonial” hearsay statements against a criminal defendant if the declarant is unavailable and the defendant has had no opportunity for cross-examination. Defining “Testimonial”: Includes sworn testimony (e.g., grand jury, prior trial, preliminary hearing). But also includes statements to police officers (sworn or unsworn) and certain documents, as discussed below. -Statements to Law Enforcement—Determine Primary Purpose • Providing information to aid police in ongoing emergency = nontestimonial. • Providing information to help police gather information for eventual prosecution = testimonial. Forensic Analysis Reports Report that has the effect of accusing a targeted per- son of criminal conduct (e.g., blood alcohol results) is testimonial. If analyst who drafted the report is unavailable to testify, there may be a Confrontation violation.

Answer 25

Federal Procedure Issue on Multistate Exam If bar examiners specifically indicate the action is pending in federal court, apply the following procedural rules: * In federal-court action arising under federal sub- stantive law (all civil cases arising under Consti- tution or federal statutes, and all criminal cases), privileges are governed by federal common law. For the most part, these are the basic rules on privileges as covered in lecture. * In federal-court action based on diversity jurisdic- tion, where state substantive law applies to parties’ claims and defenses (Erie situation), the federal court must apply privilege law of the state whose substantive law is applicable. Note: In diversity actions, federal courts also apply state law on competency (e.g., Dead Man’s Stat- utes), burdens of proof, and presumptions. Aside from these exceptions (privileges, competency, burdens of proof, presumptions), FRE apply in all federal-court actions, including diversity cases.

Answer 26

Oldest common law privilege. Rationale: To encourage client to speak openly to counsel. Elements Privilege applies to: • Confidential communications • Between attorney and client (or representative of either) • Made during professional, legal consultation • Unless privilege is waived or an exception is applicable “Confidential Communications” Client must intend confidentiality (e.g., no privilege if client knows that third party is listening in; or if client asks attorney to disclose the communication to a third party). Joint client rule: If two or more clients with common interest consult the same attorney, their communica- tions with counsel concerning the common interest are privileged as to third parties. But if the joint cli- ents later have dispute with each other concerning the common interest, privilege does not apply as between them. “Communication”: Privilege does not apply to under- lying information, pre-existing documents, or physical evidence. “Attorney” Member of the bar or person that client reasonably believes is member of the bar. Representative of the attorney: Any agent reasonably necessary to facilitate the provision of legal services (e.g., accountant working with attorney to “translate” client’s financial matters). “Client” Includes person seeking to become client (e.g., priv- ilege attaches at outset of formal consultation with attorney even if client does not retain attorney). Representative of the client: Agent reasonably necessary to facilitate the provision of legal services (e.g., for corporate client, any employee who communicates with corporation’s attorney to enable attorney to pro- vide legal services to the corporation). Professional Legal Consultation Primary purpose of communication must be to obtain or render legal services, not business or social advice. Waiver Client is holder of privilege, so client alone has power to waive by disclosure of communication to third party. Privilege continues after attorney-client relationship ends and even after death of client. Client’s estate representative has power to waive privilege after cli- ent’s death. Exceptions • Future crime or fraud • Client puts legal advice in issue • Attorney-client dispute

Answer 27

Usually created by state statute. Rationale: To encourage candor by patient and to protect privacy. Elements Privilege applies to: • Confidential communication or information ac- quired by physician from patient • For purpose of diagnosis or treatment of medical condition Also applicable to psychotherapists (M.D. or other professional certified to diagnose or treat mental/emotional illness). Federal Distinction In federal-court actions based solely on federal law, privilege exists for psychotherapists, but not for usual physician-patient confidences (e.g., gallbladder treatment). General Exception Privilege does not apply if patient expressly or impliedly puts physical or mental condition in issue.

Answer 28

Spousal *Immunity* In criminal cases only, a spouse cannot be compelled to testify against the defendant-spouse. Rationale: To protect harmony of existing marriage at time of trial. Witness-spouse holds privilege: Witness-spouse, not defendant, is holder of privilege (i.e., witness-spouse may voluntarily testify against the defendant spouse if she chooses). Confidential *Communications* between Spouses In any type of case, a spouse is not required, and is not allowed in the absence of consent by the other spouse, to disclose a confidential communication made by one to the other during the marriage (privilege survives divorce). Both spouses hold this privilege. Rationale: To encourage candor between husbands and wives during the marriage? Privacy? Exceptions Applicable to Both Privileges • Communications or acts in furtherance of future crime or fraud • Communications or acts destructive of family unit (e.g., spousal or child abuse)

Answer 29

The judge decides: • Is a witness competent to testify • Existence of privilege • Admissibility of evidence In doing so, the judge is not bound by the rules of evidence—except privilege.

Answer 30

Judicial notice is the recognition of a fact as true without formal presentation of evidence. What Facts May Be Judicially Noticed A court may judicially notice a fact that is not subject to reasonable dispute because: • The fact is generally known within the trial court’s jurisdiction (e.g., New York City is located in the State of New York), or • The fact can be accurately and readily deter- mined from sources whose accuracy cannot reasonably be questioned (e.g., October 10, 2017, was a Tuesday). Conclusiveness In a civil case, the court must instruct the jury to accept the judicially noticed fact as conclusive. In a criminal case, the court must instruct the jury that it may (but is not required to) accept the judicially noticed fact as conclusive.

Answer 31

A presumption is a rule that requires a particular inference to be drawn from an ascertained set of facts. Destroying Presumptions in Civil Cases A presumption is destroyed when the adversary pro- duces evidence to rebut the presumption. Destroying Presumptions in Criminal Cases A defendant in a criminal case does not need to pro- duce evidence to rebut a presumption (i.e., there are no mandatory presumptions against criminal defen- dants).

Answer 32

The doctrine of limited admissibility allows the court to admit evidence to be used for one purpose but not another (e.g., for impeachment but not as substantive evidence), or against one party but not another. If the court admits evidence for a limited purpose, the court must, on timely request, issue a limiting instruction.

Answer 33

**Under Rule 801 of the Federal Rules, a prior identification can be admissible nonhearsay, and the sketch could be deemed a prior identification by the witness. However, the hearsay exclusion for prior identifications only applies when the declarant is testifying at trial and subject to cross-examination.

Answer 34

Federal Rule 106 provides that, when a statement or part of a statement is introduced, the adverse party may introduce any other statement or part of the statement which ought, in fairness, to be considered at the same time.

Answer 35

A declaration of intent to do something in the future is admissible as circumstantial evidence tending to show that the intent was carried out.

Answer 36

No. Lack of religious belief is no longer a basis for excluding a witness. Not only are a person’s religious convictions irrelevant in determining the competence of a witness, Federal Rule 610 provides that a witness’s religious beliefs or opinions are not admissible to show that the witness’s credibility is thereby impaired or enhanced.

Answer 37

The original document or best evidence rule generally requires the original writing to be produced when the terms of the writing are sought to be proved and are material to the case. [Fed. R. Evid. 1002] However, under Federal Rule 1006, the contents of voluminous writings that are otherwise admissible may be presented in the form of a chart as long as the original documents are available to the other party for examination and copying.

Answer 38

Before a writing may be received in evidence, it must be authenticated by proof showing that the writing is what the proponent claims it is. All that is necessary is proof sufficient to support a jury finding of genuineness. The authenticity of a document is a preliminary fact to be decided by the jury.

Answer 39

a fact is appropriate for judicial notice when it is indisputable or can be verified through scientific principles. may also take notice of facts that are generally known within the jurisdiction of the court or are easily verifiable.

Answer 40

preliminary questions for 1) the qualifications of a person to be a witness, 2) the existence of a privilege or 3) the admissibility of evidence... shall be determined by a judge and not the jury.

Answer 41

inadmissible unless and until defendant opens the door 1) prosecution cannot introduce evidence of D's bad character if the purpose of the evidence is to show that the D acted in conformity with and committed crime charged 2) The defendant is allowed to present evidence of good character to establish that they acted in good character and did not commit crime (they are limited to evidence of reputation or opinion evidence only on direct) 3) If D does present evidence of good character, they have opened the door on the issue. 4) Evidence of prior crimes are never admissible to show that they probably acted unlawfully again (may be admissible for some other purpose -> MIMIC) 5) If D testifies then they automatically put their character for truthfulness at issue

Answer 42

is inadmissible unless it is directly at issue or is an essential element of P's claim or defense 1) cannot introduce any evidence of character trait of a party to show that they acted in conformity therewith during the event that gave rise to the litigation 2) if the litigant has some other purpose for the character evidence and it's relevant (character at issue, habit, etc.), then the rule prohibiting character will not keep it out 3) ?

Answer 43

Yes. based on the crime charged. [from example about embezzlement] Under Federal Rule 404(a), a criminal defendant is allowed to present relevant character evidence to help establish that he may not have committed the crime charged. Thus, evidence that the defendant had a reputation for being an honest person would be admissible to show that he might not have embezzled funds because embezzlement is a crime of dishonesty.

Answer 44

can impeach b/c 1) prior inconsistent statement (only comes in for impeachment purposes, not substance unless given under oath in previous proceeding) 2) bias or motive to misrepresent 3) prior conviction (dishonesty or false statement for any case OR a felony with 1+ years punishment but judge has discretion AND for either it has to be within 10 years) 4) specific acts of misconduct that bear on truthfulness or untruthfulness (extrinsic evidence not allowed) 5) bad reputation in the community for truth or veracity (extrinsic evidence allowed)

Answer 45

Relevancy issue. When a witness makes a statement not directly relevant to the issues in the case, the rule against impeachment on a collateral matter bars his opponent from proving the statement untrue either by extrinsic evidence or by a prior inconsistent statement.

Answer 46

801(d) - statements of opposing party - statements made by testifying witnesses subject to cross examination - prior inconsistent statements made under oath - prior identifications - prior consistent statements that rehabilitate

Answer 47

- present sense impression - excited utterance - statements showing current mental or physical condition - statements made for medical diagnoses - recorded recollection - the business records exception - former testimony given in former proceeding or deposition* - dying declaration* - statements against interest* *unavailability at trial is required

Answer 48

inadmissible to prove: - negligence - culpable conduct - design defect - need for warning exceptions: - to show ownership or control if controverted or in issue - feasibility of a precautionary measure - impeach credibility

Answer 49

Once threat of litigation has arisen. The public policy rationale for Rule 408, which is to encourage settlement of disputes without litigation, does not come into play until litigation is at least threatened.

Answer 50

- can be done by someone similar with the handwriting before trial. BUT cannot become familiar with it for the purposes of trial - can be done by an expert - OR can be done by giving it to the jury to let them compare for themselves

Answer 51

Marital privilege (confidential communications) - Applies in both criminal and civil cases - Protects confidential communications made between spouses DURING marriage - survives divorce and death - both have the right to invoke privilege Spousal privilege - applies in criminal cases only - protects or blocks adverse testimony based on knowledge or communications, observations, impressions, made before or during marriage so long as the spouses are married AT THE TIME OF TRIAL - the witness spouse is the holder of the privilege - upon divorce/death, entire privilege is lost

Answer 52

The appellate court should reverse the conviction on Fourth Amendment grounds. In Payton v. New York (1980), the United States Supreme Court held that, absent an emergency, a forcible, warrantless entry into a residence for the purpose of making a felony arrest is an unconstitutional violation of the Fourth Amendment as made applicable to the states by the Fourteenth Amendment. No exigent circumstances justified the warrantless arrest or the warrantless entry into the home. If the police had reason to believe the man was destroying evidence, they could have entered the home without a warrant to prevent the destruction under the exigent circumstances doctrine. But nothing in the facts gave the officers reason to believe that evidence was being destroyed. They knocked on the door, identified themselves, and demanded entrance. They heard no response or sounds of drugs being destroyed. Thus, there were no exigent circumstances.

Answer 53

To be admissible, a photograph must be identified by a witness as a portrayal of certain facts relevant to the issue, and verified by the witness as a correct representation of those facts. It is sufficient if the witness who identifies the photograph is familiar with the scene or object depicted. It is not necessary to call the photographer to authenticate the photograph.

Answer 54

The court should rule that the evidence is inadmissible. A criminal defendant has the constitutional right, under the Confrontation Clause, to confront and cross-examine the witnesses against him. Affidavits that summarize the findings of forensic analysis and have the effect of accusing the defendant of criminal conduct are testimonial in nature and are not admissible into evidence against the defendant unless the preparer is unavailable and the defendant previously had an opportunity to cross-examine. Here, admission of the affidavit precludes the defendant from cross-examining the lab technician, and there is no evidence suggesting that the technician is unavailable. Thus, the affidavit is inadmissible-the lab technician must be brought in to testify as to the findings of the fingerprint test.

Answer 55

Under Federal Rule 804(b)(1), the testimony of a witness who is unavailable, given at another hearing, is admissible in a subsequent trial if there is sufficient similarity of parties and issues so that the opportunity to develop testimony or cross-examination at the prior hearing was meaningful. The former testimony is admissible upon any trial of the same subject matter. The party against whom the testimony is offered or, in civil cases, the party's predecessor in interest must have been a party in the former action. "Predecessor in interest" includes one in a privity relationship with the party, such as grantor-grantee, testator-executor, life tenant-remainderman, and joint tenants. These requirements are intended to ensure that the party against whom the testimony is offered (or a predecessor in interest in a civil case) had an adequate opportunity and motive to cross-examine the witness. In the civil suit here at issue, the survivors of the victim were not parties to the criminal case, nor were they in privity with any such party. (The parties to that case were the defendant and the government.)

Answer 56

As well-founded as such a suspicion may be, a statement based on mere suspicion rather than actual knowledge does not constitute a statement concerning the cause or circumstances of an "impending death" for purposes of the dying declarations exception.

Answer 57

A witness may be interrogated upon cross-examination with respect to an act of misconduct only if it is probative of truthfulness. Excerpt from Q: An assault is not probative of truthfulness, so it would not be proper impeachment evidence. Had the witness been convicted of the assault, the conviction would have been admissible, provided it was a felony.

Answer 58

The testimony should be excluded because the attorney-client privilege applies to the examination done in preparation for trial. The communication between the doctor and the attorney's client is necessary to help the client convey his condition to the attorney. the physician-patient privilege does not apply to any proceeding in which the condition of the patient has been put in issue by the patient. This is the case in the plaintiff's suit, so (D) is incorrect. However, (B) is incorrect because when a client is examined by a doctor at the attorney's request, the communications involved between the client and doctor (and the doctor and attorney) are not covered by the physician-patient privilege because no treatment is contemplated. Moreover, the physician-patient privilege is a statutory privilege, and this jurisdiction recognizes only the common law privileges (e.g., the attorney-client privilege).

Answer 59

Although Federal Rule 412 generally excludes evidence of an alleged victim's sexual behavior, evidence of specific instances of sexual conduct between the alleged victim and the accused may be admitted to show consent

Answer 60

The court should admit the evidence. Statements in a document affecting an interest in property are admissible, pursuant to Federal Rule 803(15), if they are relevant to the purpose of the document.

Answer 61

A criminal defendant may introduce evidence of his own good character for a pertinent trait to show that he did not commit the alleged crime. However, such evidence may be presented in the form of reputation and opinion testimony only; specific acts are not allowed. Thus, the defendant here may not introduce his specific acts of turning down opportunities for black marketeering to prove his good character for truthfulness.

Answer 62

As a matter of public policy, evidence of repairs or other precautionary measures made following an injury is inadmissible to prove negligence, culpable conduct, a defect in a product or its design, or a need for a warning or instruction. The purpose of the rule is to encourage people to make such repairs. However, such evidence may be admissible for other purposes. One permissible purpose is to rebut a claim that the repair or precaution was not feasible. Here, the manufacturer has introduced evidence that it was unreasonably expensive to design the machine so that the wires would not come into contact-but they did in fact implement this new design. Thus, the plaintiff may introduce evidence of the new design to rebut the manufacturer's claim that it was not feasible.

Answer 63

NO, there are conditions. The content of the treatise is hearsay because it is an out-of-court statement being offered for the truth of its contents. There is a hearsay exception that allows portions of learned treatises to be read into evidence, but this exception applies only when the treatise is being used on direct or cross-examination of an expert witness.

Evidence Flashcards

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