Evidence

Question 1

Evidence Must Be Relevant

Answer 1

Relevant if it has a tendency to prove or disprove the existence of any material fact.

Substance of the case or impeachment.

Question 2

Probative v. Prejudicial

Answer 2

Must be more probative than prejudicial.

Caution: All evidence is prejudicial.

Question 3

Unduly Prejudicial

Answer 3

Where there is cause to believe jury will misinterpret the evidence.

Question 4

Relevant Evidence May Be Excluded

Answer 4

If (1) confusion of the issues, (2) misleading the jury, or (3) unduly delay, waste of time, or needless presentation of cumulative evidence.

Question 5

To Be Relevant, Evidence Must Be Reliable

Answer 5

Authenticating reliability of evidence by: (1) Personal knowledge; (2) Chain of custody; (3) Certified public records; (4) Verification of handwriting

Question 6

When is Relevant Evidence Inadmissible

Answer 6

When it is: (1) Hearsay; (2) Privilege; or (3) Character.

Question 7

Hearsay

Answer 7

An out of court statement offered to prove the truth of the matter asserted.

Statement can be oral, written or even a nonverbal assertion.

Question 8

Statement Not Being Offered for The Truth of The Matter Asserted

Answer 8

Admissible as relevant evidence.

Question 9

Admissibility of Out of Court Statements

Answer 9

It is admissible to impeach.

It is admissible for other purposes such as notice or knowledge, fraud, misrepresentation, ownership, to demonstrate declarant was present.

Question 10

Impeachment by Hearsay

Answer 10

When a hearsay declarant is not present at trial, FRE 806 allows for impeachment of that declarant, even without an opportunity to explain or deny it, by a prior inconsistent statement.

Question 11

Effect on the Listener

Answer 11

Out-of-court statements offered to show the effect on the listener, including attributing knowledge or belief, are not hearsay.

Question 12

Admission By a Party-Opponent

Answer 12

(1) Must be a statement from an opposing party, or an agent for that party, (2) Must be introduced by adversary, and (3) Relevant to prove an element of the case itself.

Statements by an agent or employee concerning any matter within the scope of her agency or employment, made during the existence of the agency or employment relationship, are admissible against the principal.

Question 13

Hearsay Within Hearsay

Answer 13

A statement that contains hearsay within hearsay may be admissible as long as each part of the combined statement conforms to a hearsay exception.

Question 14

Declarant Must Be Available
-Hearsay Exceptions-

Answer 14

-Prior Identification
-Prior Consistent Statement (rehab)
-Prior Inconsistent Statement (prior under oath + now cross)
-Past Recollection Recorded (no memory + contemporaneous recording)

Question 15

Prior Identification

Answer 15

Prior statements made for identification are admissible even if the witness can no longer remember it. As long as the witness who made the identification is subject to cross-examination at trial, another witness who was present may testify regarding the prior identification.

Question 16

Recorded Recollection

Answer 16

(1) The witness’s memory cannot be revived, although he previously had knowledge, (2) the recording was made when the facts were fresh in his mind and (3) was accurately recorded.

Question 17

Declarant Must Be Unavailable
-Hearsay Exceptions-

Answer 17

-Former Testimony
-Dying Declaration
-Statement Against Interest

Question 18

Statement Against Interest

Answer 18

The statement (person unavailable) must have been so against the declarant’s pecuniary or proprietary interest, or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability, that a reasonable person in the declarant’s position would have made the statement only if she believed it to be true.

Question 19

Former Testimony

Answer 19

Testimony given as a witness at another hearing of the same or a different proceeding, if the party against whom the testimony is now offered had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination, is admissible if it is similar/identical to present issues and the declarant is unavailable.

Question 20

Dying Declaration

Answer 20

In a prosecution for homicide or civil action, a statement made by the now-unavailable declarant while believing his death was imminent that concerns the cause or circumstances of what he believed to be his impending death is admissible as a dying declaration. The declarant need not actually die, but he must be unavailable at the time the statement is offered.

Question 21

Declarant Availability Not Relevant
-Hearsay Exceptions-

Answer 21

• Present Sense Impression
• Excited Utterance
• State of Mind/Physical Condition
• Statement of Past or Present Bodily Condition
• Business Record
• Public Record
• Treatise
• Judgment of Conviction

Question 22

A Statement Made for The Purpose of Medical Diagnosis

Answer 22

Statements made to treating physicians, but also statements made to other doctors for evaluation or diagnosis - including doctors consulted for diagnoses for purposes of litigation.

Question 23

Excited Utterance

Answer 23

Statement related to a startling event or condition made while the person was under the stress of excitement caused by the event or condition and is thus admissible.

Question 24

Present Sense Impression

Answer 24

A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.

Question 25

Then Existing State of Mind

Answer 25

Statements that reflect directly (as opposed to circumstantially) on the declarant’s state of mind (physical, mental, or emotional) are hearsay but are admissible.

Question 26

Business Record

Answer 26

It is a (1) record of acts, events, conditions, opinions, or diagnoses, (2) made at or near the time by, or from information transmitted by, a person with knowledge, (3) kept in the course of regularly conducted business, and (4) it was the regular practice to make the record.

Question 27

Public Record

Answer 27

State issued motor vehicle registrations are self-authenticating documents and are admissible as a hearsay exception.

Question 28

Treatise

Answer 28

Substantively admissible if it is: (1) called to the attention of the expert witness upon cross-examination or relied upon by her during direct examination; and (2) established as a reliable authority by the testimony or admission of the witness, by other expert testimony, or by judicial notice. If the court finds a publication to be a reliable authority, then "statements" from it may be read into evidence, but the publication may not be received as an exhibit.

Question 29

Civil Cases -Character Evidence-

Answer 29

Character evidence is inadmissible except where character is at issue. Usually defamation cases.

Question 30

Criminal Cases -Character Evidence-

Answer 30

Character evidence is inadmissible by prosecution. Evidence of good character is admissible by defendant. Defendant that offers evidence of good character opens the door for prosecution to rebut evidence with evidence of relevant bad.

Question 31

Witnesses in Civil and Criminal Cases -Character Evidence-

Answer 31

Any witness who takes the stand (including a party to the action) places character for truthfulness at issue in trial. Opens the door to having their character for untruthfulness proven.

Question 32

Proving Character

Answer 32

Character that IS admissible is generally proven through the introduction of opinion and reputation.

Question 33

Character Evidence Must Be Relevant to Crime Charged

Answer 33

Evidence of a defendant's reputation for peaceableness is relevant to the murder charge, a crime of violence, while his reputation for truthfulness is irrelevant to such a charge and no other basis exists to admit it.

Question 34

Criminal Defendant Seeks to Establish Good Character

Answer 34

When a criminal defendant seeks to establish his good character, proof is only admissible by reputation evidence or opinion evidence, not by specific instances of conduct, unless character is the ultimate issue in the case.

Question 35

Witness Credibility Attack and Rehabilitate

Answer 35

A witness’s character for truthfulness may be attacked (or impeached) by any crime (felony or misdemeanor) if it can be readily determined that conviction of the crime required proof or admission of an act of dishonesty or false statement. Once a witness has been impeached based on his character for untruthfulness, he may be rehabilitated in the form of extrinsic evidence, including calling another character witness to testify regarding the impeached witness's character for truthfulness, in the form of opinion and reputation evidence.

Question 36

Prior Bad Acts to Prove Character

Answer 36

Prior Bad Acts are generally inadmissible to prove that a defendant or other party has engaged in the bad or dishonest acts.

Question 37

Civil Cases -Prior Bad Acts-

Answer 37

Inadmissible except where character is at issue. If character is directly at issue, prior bad acts can be relevant to prove the character trait at issue. Defamation [libel or slander] cases are most frequently tested (Negligent Entrustment and Child Custody as well).

Question 38

Impeachment by Contradiction

Answer 38

Prior bad acts admissible to contradict current testimony.

Question 39

Criminal Cases -Prior Bad Acts-

Answer 39

Prior bad acts are inadmissible in a criminal case to prove defendant acted in conformity with the prior misconduct.

Question 40

EXCEPTION Criminal Cases -Prior Bad Acts-

Answer 40

MIMIC: Motive Intent Lack of Mistake Identity Common Plan or Scheme

Question 41

Prior Bad Acts Are Inadmissible Against a Witness

Answer 41

Exception: Cross examination of witness: Admissible on cross only to challenge veracity of the witness’s testimony. No extrinsic evidence except for criminal conviction of witness < 10 years old.