Evidence

Question 1

authentication and chain of custody requirement

Answer 1

One of the general requirements for admissibility of real evidence is that it be authenticated; i.e., that it be identified as being what its proponent claims it is.

If the evidence is of a type that is likely to be confused or can be easily tampered with, the proponent of the object must present evidence of chain of custody. The proponent must show that the object has been held in a substantially unbroken chain of possession.

It is not necessary to negate all possibilities of substitution or tampering; rather, what is required is to show adherence to some system of identification and custody.

Question 2

hearsay exception: felony convictions

Answer 2

Judgments of felony convictions are admissible in both criminal and civil actions to prove any fact essential to the judgment, whether the judgment arose after trial or upon a plea of guilty

properly authenticated copy of conviction fills that requirement

does not matter if it was result of guilty plea or a trial

Question 3

learned treatises

Answer 3

learned treatises can be used either for impeachment or as substantive evidence.

Impeachment: the credibility of an expert witness may be attacked by cross-examining the expert on statements contained in any scientific publication that is established as reliable authority.

Reliability of a publication may be established by: (i) the direct testimony or cross-examination admission of the expert, (ii) the testimony of another expert, or (iii) judicial notice.

Substantive Evidence: exception to the hearsay rule for learned treatises applies (and they can be admitted as substantive evidence) if: (i) the expert is on the stand and it is called to his attention, and (ii) it is established as reliable authority (see above).

Question 4

nonhearsay: effect on listener

Answer 4

a statement that would be inadmissible hearsay to prove the truth thereof may be admitted to show the statement’s effect on the listener or reader.

example: in negligence case, where knowledge of a danger is at issue, a person’s warning statement is admissible for the limited purpose of showing knowledge or notice on the part of a listener

Question 5

hearsay exception: statement against interest

Answer 5

statements of a person, now unavailable as a witness, against that person’s pecuniary, proprietary, or penal interest when made are admissible as an exception to the hearsay rule

Question 6

work product rule

Answer 6

work product is material created by a party or representative (like attorney) in anticipation of litigation.

an adverse party generally may not discover or compel disclosure of written or oral materials that fall under the work product definition

Question 7

voice authentication

Answer 7

any person familiar with an alleged speaker’s voice may authenticate a recording of the voice by giving an opinion as to its identity

Question 8

hearsay exception: dying declaration

Answer 8

a statement made by a now unavailable declarant, while believing her death was imminent, that concerns the cause or circumstances of what she believed to be her impending death are admissible

Criminal Cases: dying declarations are only admissible in homicide cases

Remember: the defendant need not actually die as a result of the circumstances giving rise to her belief of imminent death

Question 9

judicial notice in criminal case

Answer 9

when a court takes judicial notice of a fact under the federal rules in a criminal case, the jury may, but is not required to, accept the fact noticed; thus, its effect is only to relieve the prosecutor of her burden of producing evidence on that fact

Question 10

judicial notice in civil case

Answer 10

the fact noticed is conclusively established

Question 11

who determines expert witness qualification?

Answer 11

judge determines whether someone qualifies as an expert

Question 12

who determines whether a hearsay exception applies or not?

Answer 12

the judge determines it, not the jury, so you can object based on judge’s failure to make a preliminary ruling

Question 13

refreshing recollection

Answer 13

rules of evidence allow a witness’s recollection to be refreshed by just about anything

witness may not read from the writing while he testifies; it is used solely to jog his memory.

Opposing Counsel Rights: opposing counsel is allowed to examine the item being used to refresh the witness’s testimony and may cross-examine the witness about it, he may not object to it

Question 14

what information can expert witnesses rely on?

Answer 14

an expert may base her opinion on facts not in evidence that were supplied to her out of court or in court, and that are of a type reasonably relied upon by experts in that particular field in forming opinions on the subject

Facts or data upon which expert opinions are based may be derived from presentation at trial

And, the information need not be admissible

Question 15

what information can lay witnesses testify to?

Answer 15

lay witnesses may testify as to anything that is rationally based in the witness’s perception

Remember: they may not give legal conclusions/opinions

Question 16

character evidence in a criminal case

Answer 16

5 Key Rules:

1. prosecution can’t introduce any evidence of D’s bad character if purpose of evidence is to show he probably acted in conformity therewith and committed the crime charged [no propensity]
2. the D is allowed to present evidence of relevant, good character to show that he acted in conformity and didn’t commit the crime. but, then limited to reputation or opinion evidence only on direct (no specific acts)
3. if D does present evidence of good character, then they’ve opened the door and prosecution can rebut with evidence of D’s bad charcater, but reputation or opinion only on direct
4. evidence of prior crimes (prior bad acts) are never admissible to show that the D probably acted criminally again. However, may be admissible for MIMIC (motive, intent, absence of mistake, identity, common plan or scheme)
5. if D testifies, then he automatically places his character for truthfulness or untruthfulness at issue

Question 17

character evidence in a civil case

Answer 17

3 Key Rules:

1. cannot introduce evidence of any trait of a party to show that they acted in conformity during event that gave rise to litigation
2. if a litigant has some other purpose for the introduction of character evidence and it’s relevant, then the rule prohibiting character evidence won’t keep it out (child entrustment, for example)
3. if a party testifies, they automatically put their truthfulness at issue

Question 18

5 types of impeachment

Answer 18

How to impeach?

1. prior inconsistent statement
2. bias or motive to misrepresent
3. prior conviction
4. specific acts of misconduct which bear on truthfulness or untruthfulness
5. bad reputation in community for truth or veracity

Question 19

prior inconsistent statement for impeachment

Answer 19

can only come in to impeach or destroy credibility; doesn’t come in as true as a general proposition

Exception: if PIS is given under oath AND as part of a prior proceeding like trial or deposition –> comes in as substantive evidence, too

Question 20

bias or motive to misrepresent

Answer 20

always material, always allowable, allowed to use extrinsic evidence to prove

Question 21

prior convictions to impeach

Answer 21

crime involving dishonesty or false statement, usable to impeach in any case, no discretion on the part of the trial judge

if it’s a serious crime (felony punishable by more than 1 year) –> usable to impeach, but subject to discretion (probative value v. prejudicial effect)

and, cannot be too remote. If > 10 years has elapsed from release, then it’s too remote

Question 22

specific acts of misconduct which bear on truthfulness or untruthfulness (which didn’t result in convictions) for impeachment

Answer 22

these can be inquired into on CX, but no extrinsic evidence allowed

Question 23

bad reputation in community for truth/veracity for impeachment

Answer 23

extrinsic evidence is allowed

Question 24

collateral matter rule

Answer 24

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

Question 25

hearsay exception: present sense impression

Answer 25

statement describing an event, made while declarant was observing the event or immediately thereafter

Question 26

silence as admission

Answer 26

if a party to the action hears an accusation and fails to protest, and a judge determines that a reasonable person would’ve protested, then the accusation + silence are considered adoptive statements

Question 27

settlement offers

Answer 27

offers to compromise a disputed claim inadmissible to prove or disprove the validity or amount of a disputed claim are inadmissible

however, statements made by the defendant before the plaintiff made any claim; i.e., there was not yet an actual dispute between the parties, are admissible

Question 28

best evidence rule

Answer 28

the original writing must be produced when proving the material terms of that writing.

Secondary evidence of the writing, such as oral testimony regarding the writing’s contents, is permitted only after it has been shown that the original is unavailable for some reason other than by serious misconduct of the proponent