Evidence

Question 1

Objections and Offers of Proof

Answer 1

An objection must be made as soon as the opposing attorney reasonably knows that valid grounds for an objection exist.

An objection must state the precise legal ground on which it is based unless that ground is obvious from the context.

Hearsay evidence which would be inadmissible at trial is admissible before a judge hearing evidence on a preliminary question of fact.

Question 2

Preliminary Questions

Answer 2

The party seeking admission of evidence has the burden to establish preliminary facts such as competency, qualification of witnesses, unavailability, or privilege by a preponderance of the evidence.

Question 3

Rule of Completeness / Completeness Doctrine

Answer 3

If one P introduces a writing/recorded statement or part of one, the adverse party may require the introduction at any time of any other part or any other writing or recorded statement that ought, in fairness, to be considered contemporaneously with it.

Question 4

Judicial Notice

Answer 4

Must be a fact which is not subject to reasonable dispute.

Must take judicial notice upon motion and being supplied with necessary information.

Conclusive in civil, not in criminal.

Question 5

Presumptions

Answer 5

Presumptions shift burden.

Federal: evidence to rebut bursts bubble.

NC: presumption still in place, just no longer conclusive.

Conclusive presumptions are irrefutable MoLs, not just presumption.

Question 6

Probative Value

Answer 6

Relevant evid = tends to make existence of any fact more or less probable than it would be without the evidence.

All relevant evid is admissible unless exception or 403 bars.

Question 7

403 Test

Answer 7

Unfair prejudice, confusion, or waste of time.

Question 8

Character Evidence

Answer 8

Generally: evid of person’s character not admissible to show he acted in conformity with that character.

In criminal case, D can open door to character evidence by offering evidence of his own character that is inconsistent w/ crime charged. Prosecution can then rebut.

V’s character: Feds allow character evid about D when D presents character evid against V. NC limits prosecution to good character evid about V.

Specific Acts: may also be admitted to show character if character is an essential element of the charge/claim/defense.

Question 9

Other Crimes Evidence

Answer 9

Prosecution can offer circumstantial evidence of other crimes/wrongs/acts for narrow purposes:
1 - motive
2 - opportunity
3 - intent
4 - preparation/plan/knowledge
5 - identity
6 - absence of mistake/accident
MIMIC

NC –> Also allowed to rebut ENTRAPMENT defense.

Question 10

Habit/Custom/Routine Practice

Answer 10

Evid of habit/routine is allowed to show conduct on this occasion was in conformity w/ habit.

Regular response to given situation that is done without a high degree of forethought.

Question 11

Subsequent Remedial Measures

Answer 11

Not admissible to show negligence, culpability, defects, or need for warning/instruction.

Admissible for: ownership, control, feasibility of precautionary measures, impeachment.

Question 12

Compromise and Offers to Compromise

Answer 12

Settlement offers not admissible to prove validity or amount of claim.

Offer to compromise doesn’t exist until other party has made a claim so dispute exists.

May be used to:
1 - Show witness bias
2 - negate contention of undue delay
3 - prove effort to obstruct criminal investigation/prosecution

Plea bargain offers and statements made in connection w/ them are not admissible.

Question 13

Offers to Pay Expenses

Answer 13

Medical expenses - not admissible to prove liability (but admissions are severable and admissible)

NC ADDS “other” expenses, including lost wages, property damages, and the like. All are inadmissible.

Question 14

Rape/Sexual Battery and Prior Bad Acts Evidence

Answer 14

In an civil/crim proceeding involving sexual misconduct, evid of prior sexual conduct generally inadmissible to show V engaged in other sexual behavior or V’s sexual disposition.

In criminal case, evid admissible 3 reasons:
1) to prove specific instances of sexual behavior by V if offered to prove that person other than D was source of physical evidence

2 - to prove specific instances of sexual behavior by V with D, either by defense (to show consent) or by prosecution, AND

3 - exclusion of evidence would violate constitutional rights of D.

NC Four exceptions to general rule barring evidence of V’s prior sexual conduct. Admissible if:
A - was between complainant and defendant.

B - is evidence to show act or acts charged not committed by D

C - evid of distinctive pattern of behavior so closely resembling D’s version of account as to tend to prove consent or that V misled D into thinking there was consent, and

D - evid offered as basis for expert psychological or psychiatric opinion that the complainant fantasized or invented the act(s) charged.

Question 15

Attorney-Client Privilege

Answer 15

Client holds privilege to prevent other person from disclosing confidential communications made for purpose of facilitating professional legal services.

Confidential = not intended to be disclosed to 3Ps.

Extends to representatives of lawyer.

Doesn’t apply if lawyer retained to aid/enable crime or fraud.

Doesn’t attach to pre-existing written documents.

Question 16

Physician/Psych - Patient Privilege

Answer 16

Patient holds privilege to refuse to disclose confidential communications made for purpose of diagnosis or treatment of phys/mental condition.

3P Presence: doesn’t destroy if 3P:
1 - is there to further interest of patient,
2 - is reasonably necessary for transmission of communication, or
3 - is participating in diagnosis or treatment.

Doesn’t cover exams in preparation for litigation or by court-appointed physicians.

Waived if patient puts phys/ment condition at issue.

FEDS: only psych, not physicians.

NC: extends to social workers and therapists. But judge can waive if necessary for “proper administration of justice.”

Question 17

Self-Incrimination

Answer 17

Statements during plea discussions not admissible.

Only testimonial evidence barred (not blood samples, etc.).

Prelim hearing: testimony doesn’t waive 5A privilege, and not allowed at all in trial.

GOVT CAN COMPEL TESTIMONY BY GRANTING IMMUNITY FROM THE ACTUAL TESTIMONY AND ANY EVIDENCE DERIVED THEREFROM. (derivative use)

Question 18

Witness Competence

Answer 18

Everyone is competent, unless:
A - incompetent under state law (if state law controls)
B - lacks personal knowledge and not expert
C - witness cannot understand must tell truth
D - trial judge
E - juror
NC adds “incapable of expressing himself in a manner that can be understood, either directly or through interpretation by one who can understand him.”

Question 19

Who may impeach Ws

Answer 19

Any party, including party who calls.

Question 20

non-crim Character Impeachment

Answer 20

Credibility may be attacked by opinion or reputation evidence regarding W’s character for truthfulness.
(A) Only after attacked, evid of character for truthfulness may be admitted.

Specific Acts (other than crim convictions):
1 - May be inquired into on cross when concerns character for truthfulness.
2 - Extrinsic evid may not be introduced to prove the specific acts.

Question 21

Impeaching with Convictions

Answer 21

1) Crimes involving dishonesty or false statement:
MUST be admitted if
A - within 10 years
B - passes 403 test
MAY BE admitted if older than 10 years and passes reverse 403 (prob value subst outweighs prej)

2) FOR CRIMINAL DEFENDANT: Crimes punishable by death or at least 1 year imprisonment MAY be admitted if probative value outweighs prejudicial effect.
3) FOR WITNESS (not accused): nonfraud crimes w/in 10 years punishable by death or 1+ sentence MUST be admitted unless fails 403.
4) NON-ACCUSED WITNESS: 10+ year old convictions, only admitted subj to reverse 403.

5) Juvenile convictions inadmissible to impeach, but may be admitted if:
A - would be admissible but for the age of convicted
B - admission necessary for determination of guilt or innocence.

Question 22

NC Cross

Answer 22

Not limited, like feds, to scope of direct. Anything relevant.

Question 23

Prior Inconsistent Statements

Answer 23

Admissible substantively in 3 cases:
1) If “sworn”

2) Admission
3) Hearsay exception applies

Otherwise admissible only to impeach.
A - extrinsic not admissible unless W given chance to explain or deny the evidence and opposing party is afforded opportunity to interrogate thereon.

Question 24

Lay Opinion Testimony

Answer 24

Admissible

1) Perceptions (speed/other measurements)
2) Physical states (injury, intox)
3) Personal emotions of others
4) Sensory descriptions
5) Value of one’s own land
6) Sanity of testator (only Witnesses of will)

Inadmissible
A) Legal conclusions
B) Truthfulness opinions

Question 25

Expert Opinions

Answer 25

Qualifications:

1) Scientific/technical/specialized knowledge assist trier of fact,
2) EW qualified as expert by knowledge/skill/experience/training/education.

Fed Daubert Test:
A) testimony based on sufficient facts/data
B) reliable principles/methods, and
C) principles/methods applied reliably to facts of case

NC test (more permissive):

1) method of proof sufficiently reliable
2) witness qualified as expert in that area
3) expert testimony relevant

NC requires offering party:
A) Introduce evidence showing W is expert, AND
B) tender expert by asking court to declare her and expert.

Question 26

Bases of Expert Opinions

Answer 26

1) May be based on facts made known to expert before or at hearing.
2) May rely upon inadmissible facts/data if of type reasonably relied upon by experts in his field.
3) NC gives adverse party the right to request that expert disclose underlying facts or data of his opinion prior to giving his opinion.

4) ULTIMATE ISSUE:
(a) Generally, lay and expert witnesses may testify on ultimate issues.
(b) Feds do not allow experts to testify as to accused’s mental state/condition.
(c) NC allows experts to testify as to mental state/condition of accused.

Question 27

Fed Hearsay Exemptions:

Answer 27

1) Admissions
- HS exception in NC; excludes no contest pleas
2) Prior sworn inconsistent statements
- inadmissible HS in NC, but impeachable
3) Prior consistent statements, and
- inadmissible HS in NC
4) Prior identifications.
- inadmissible HS in NC.

Question 28

NC Residual HS Exception

Answer 28

Proponent must give sufficient written notice in advance.

Must be circumstantial guarantees of trustworthiness:
1 - assurance of Declarant’s personal knowledge of underlying event
2 - declarant’s motivation to speak truth
3 - whether declarant ever recanted statement
4 - why declarant unavailable

Question 29

Business Records

Answer 29

NC: not self-authenticating; need custodian of records or other qualified W to authenticate.