Evidence

Question 1

Relevant Evidence

Answer 1

All relevant evidence is admissible if it is competent, i.e. it does not violate an exclusionary rule

Question 2

Liability Insurance

Answer 2

Rule: Inadmissible to prove negligence or ability to pay

Exception: Admissible to prove (1) ownership or control, (2) impeachment, or (3) as part of an admission of liability

Question 3

Subsequent Remedial Measures

Answer 3

Rule: Inadmissible to prove negligence, culpable conduct, defect

Exception: Admissible to prove (1) ownership or control, (2) feasibility of the repair, or (3) destruction of evidence

Question 4

Settlement Offers and Accompanying Admissions of Fact

Answer 4

Rule: Inadmissible to prove or disprove validity or amount of disputed claim, or to impeach by prior inconsistent statement or contradiction

Exception – preexisting information not protected

Question 5

Payments or Offers to Pay Medical Expenses

Answer 5

Rule: Payments or offers to pay medical expenses are inadmissible to prove liability

Note: Accompanying statements of fact ARE admissible (unlike rule for settlement negotiations)

Question 6

Withdrawn Guilty Pleas and Accompanying Statements

Answer 6

Rule: Withdrawn guilty pleas and statements made in negotiating these please are generally inadmissible

Question 7

Discretionary Relevance - Rule 403 Balancing Test

Answer 7

Judges have broad discretion to exclude relevant evidence if its probative value is substantially outweighed by 
o	Unfair prejudice 
o	Confusion of Issues 
o	Misleading the Jury 
o	Undue Consumption of Time

Question 8

Types of Policy Based Relevance

Answer 8

1. Liability Insurance
2. Subsequent Remedial Measures
3. Settlement Offers and Accompanying Admissions of Fact
4. Payments or Offers to Pay Medical Expenses
5. Withdrawn Guilty Pleas and Accompanying Statements

Question 9

Character Evidence - Permitted Methods

Answer 9

1. Reputation Testimony
2. Opinion Testimony
3. Specific Acts

Question 10

Specific Acts

Answer 10

Usually not permitted unless character is directly at issue in the case (rare), sexual assault or child molestation, or when the act is independently relevant (i.e. relevant to an issue other than D’s character)

MIMIC

1. Motive
2. Intent
3. Mistake (or absence of)
4. Identity
5. Common Plan or Scheme

Question 11

MIMIC

Answer 11

When an act is independently relevant (i.e. relevant to an issue other than D’s character) - regarding Specific Acts

1. Motive
2. Intent
3. Mistake (or absence of)
4. Identity
5. Common Plan or Scheme

Question 12

Federal Common Law Privileges - Types of Testimonial Privileges

Answer 12

Always Seeing My Psycho Cousin Gilbert

Attorney-client privilege 
Spousal immunity 
Marital communications privilege 
Psychotherapist/ social worker-client privilege 
Clergy-penitent privilege 
Governmental privileges

Question 13

Contradiction

Answer 13

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.

Question 14

Method of Proof for Criminal Convictions

Answer 14

(1) As witness to admit prior conviction, OR (2) introduce record of conviction (extrinsic).

Not required to confront witness prior to introduction
of record of conviction

Question 15

Prior Bad Acts Involving Untruthfulness

Answer 15

General Rule: For prior bad acts involving untruthfulness, confrontation on cross-examination is the only permissible means, and no extrinsic evidence is permitted

Cross-examiner must have good-faith basis, and ability
to inquire lies in court’s discretion

Question 16

Impeachment of Hearsay Declarant

Answer 16

General Rule: Opponent may use any of the impeachment methods to attack the credibility of a hearsay declarant

Question 17

Rehabilitation

Answer 17

Method of bolstering witness’s credibility after is has been attacked

• Showing Witness’s Good Character for
  Truthfulness
• Prior Consistent Statements

Question 18

Rehabilitation Method - Prior Consistent Statements

Answer 18

Prior Consistent Statements
When allowed:
• Witness is charged with fabrication based on a
recent motive or improper influence, and the statement 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 rehabilitate are also admissible as substantive evidence;
i.e., for truth of matter asserted (hearsay exclusion)

Question 19

Rehabilitation Method - Showing Witness’s Good Character for

Truthfulness

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.

Question 20

Recorded Recollection Exception

Answer 20

General Rule: Under the “recorded recollection” exception to the hearsay rule, where a witness’s memory of an event cannot be revived by reviewing a memorandum or other record made by the witness at or near the time of the event, a party may introduce the record into evidence by reading it aloud to the jury.

Question 21

Present Recollection Revived/ Refreshed

Answer 21

General Rule: A witness may use any writing or thing for the purpose of refreshing her present recollection (not authenticated or in evidence)

If a writing is used to refresh the recollection of a witness, the opposing party has a right to introduce the document into evidence

Question 22

Impeachment - Prior Inconsistent Statements

Answer 22

General Rule: Prior inconsistent statements can be used to impeach witnesses, effectively discrediting their testimony. To do so, witness can be cross-examined to show the presence of statements contrary to that of current testimony.

Question 23

Lay Witnesses

Answer 23

General Rule: A lay witness’s testimony as to the general appearance or condition of a person is admissible, but testimony that a person is suffering from a specific disease or a specific injury is inadmissible because it usually requires the knowledge of an expert.

Testimony involving sense recognition (e.g., an object was heavy and bulky ), a state of emotion (e.g., a person seemed cheerful), and whether a person was intoxicated are admissible because they are based on the perception of the witness rather than on specialized knowledge

Question 24

Expert Testimony

Answer 24

Under Federal Rule 702, expert opinion testimony is admissible if the subject matter is one where scientific, technical, or other specialized knowledge would help the trier of fact understand the evidence or determine a fact in issue. This test of assistance to the trier of fact subdivides into two requirements:
(i) The opinion must be relevant, and (ii) The methodology underlying the opinion must be reliable.

The expert must possess reasonable certainty or probability regarding his opinion. If the opinion of the expert is a mere guess or speculation, it is inadmissible.

Question 25

Prior Bad Acts - Extrinsic Evidence

Answer 25

Rule: Extrinsic evidence of "bad acts" is not permitted, even where the witness denies committing the act on cross-examination. If the prior bad act also helps establish bias, the courts have held that extrinsic evidence also will be admissible.

Question 26

Impeachment - Prior Specific Acts

Answer 26

Under the Federal Rules, a witness may be impeached on cross-examination with her prior specific acts of misconduct that are probative of truthfulness. Specific "bad acts" that show the witness unworthy of belief (i.e., acts of deceit or lying) are probative of truthfulness. Must be presented in the form of an inquiry

Question 27

Judicial Notice

Answer 27

Rule: The court recognizing that the fact is true, without a formal presentation, is not subject to reasonable dispute - common knowledge - capable of verification (i.e. a date is on a Tuesday)

Question 28

Presumption

Answer 28

Rule: Requires a particular inference be drawn from a certain set of ascertained facts Presumption destroyed when adversary produces evidence that rebuts the presumption

Question 29

Limited Admissibility

Answer 29

Rule: Allows the court to be admissible for one purpose but not for another Court must give a limiting instruction to the jury

Question 30

Preliminary Issues of Admissibility

Answer 30

Rule: Judicial discretion

Question 31

Leading Questions

Answer 31

Rule: Leading questions, permitted on cross examinations, are generally not permitted if they are asked on direct examination of a disinterested eyewitness Exceptions: Exceptions generally made for children and permitted to be asked on preliminary matters that do not require testimony about the facts at issue

Question 32

Authentication of Handwriting

Answer 32

Although a lay witness can offer an opinion to identify and authenticate handwriting, a non-expert who familiarized themselves with D's signature in preparation for trial is not allowed to authenticate

Question 33

Character Evidence in Civil Cases

Answer 33

Rule: Generally inadmissible

Question 34

Instances for Unavailability of a Witness (PRISM)

Answer 34

Rule: Declarant must be unavailable for the exceptions to apply ``` Privilege (assertion of) Refusal to testify Incapacity Subpoena (failure to comply) Memory (lack of) ```

Question 35

PRISM Exceptions

Answer 35

1. Former Testimony 2. Dying declaration (only civil and criminal homicide) 3. Declaration against interest

Question 36

Reputation/ Opinion Evidence in Sexual Assault Cases

Answer 36

Rule: In sexual assault cases, D may NOT introduce reputation or opinion evidence of a bad character trait of the alleged crime victim

Question 37

Specific Instances in Criminal Sexual Assault Cases

Answer 37

Rule: Specific acts are admissible only to prove (1) that someone other than D is the source of semen, injury, or other physical evidence and (2) specific instances of sexual behavior b/w victim and the accused to prove consent

Question 38

Specific Instances in Civil Sexual Assault Cases

Answer 38

Rule: Sexual behavior of victims are admissible if (1) its probative value substantially outweighs the danger of harm to the victim (2) and only if it has been placed in controversy by the victim

Question 39

Judicial Notice of Law

Answer 39

Rule: Courts must take judicial notice of federal and state law and official regulation of the forum state and the federal government Exception: Courts MAY take judicial notice of municipal ordinances and private acts or resolutions of Congress or of the local state legislature. Laws of foreign countries may also be judicially noticed

Question 40

Opinion Testimony

Answer 40

Rule: Opinions by lay witnesses are generally inadmissible Exception: Cases where no better evidence can be obtained (1) rationally based on witness's perception (2) helpful to a clear understanding of his testimony or helpful the the determination of a fact in issue and (3) not based on scientific, technical, or other specialized knowledge

Question 41

State Law Privileges (Unrecognized by Federal Law)

Answer 41

Physician-Patient Accountant-Client Professional Journalist

Question 42

Specific Presumptions

Answer 42

``` Legitimacy Against Suicide Sanity Death from Absence (continuous period of seven years) Ownership of Car Chastity Regularity Continuance Mail Delivery Solvency Bailee's Negligence Marriage ```

Question 43

Double Hearsay

Answer 43

Rule: Double hearsay is admissible, only if both the hearsay statement AND the inner hearsay statement fall within an exception (ex. hospital record containing victim's statement)

Question 44

Admission of Hearsay Statements - Impeachment

Answer 44

Rule: When a hearsay statement is admitted, the party against whom it is offered may impeach the declarant's credibility by evidence that would be admissible had the declarant testified

Question 45

Marital Privilege - marital communications

Answer 45

Rule: Provides that either spouse has a privilege not to testify as to a confidential communication made between spouses during the marriage, and the communication must be in reliance upon the intimacy of the marital relationship Note: Death does not sever this privilege Exception: The privilege does not apply if the communication is revealed to a third party