Evidence

Question 1

Original Documents

Answer 1

An original document or writing includes either the original itself or a duplicate.

There are three substitutes for an original:
1. A duplicate;
2. A certified copy of a public record; or
3. Summaries of voluminous records.

Question 2

Authenticating Voice Evidence

Answer 2

Voice evidence may be authenticated via opinion identifying a person’s voice — whether heard firsthand or through mechanical or electronic transmission or recording — based on hearing the voice at any time under circumstances that connect it with the alleged speaker.

Must have had firsthand knowledge that the party speaking was the party on the recording, and vice versa.

Question 3

Double Hearsay

Answer 3

Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statement conforms with an exception to the hearsay rule.

Question 4

Rule of Completeness

Answer 4

Where a party introduces part of a writing or recording, the adverse party may immediately introduce any other writing or part of the writing, which, in fairness, ought to be considered in conjunction with it.

Question 5

Leading Questions

Answer 5

Not generally permitted during direct examination.

Sometimes permitted on direct when questioning a child, a mentally impaired witness, an expert witness, a hostile witness, or to obtain preliminary information like a name or address.

Leading questions are usually permitted upon cross-examination.

Question 6

Testimony About Jury Deliberations

Answer 6

Generally, jurors may not testify about matters occurring during deliberations.

Exceptions—
- Where extraneous prejudicial information was brought to the jury’s attention,
- When an outside influence was improperly brought into jury deliberations, or
- If there was a mistake in entering the verdict on the verdict form.

Question 7

Hearings Outside of the Presence of the Jury

Answer 7

The court must conduct any hearing on a preliminary question outside of the presence of the jury if: (JAW)

(1) Justice requires;
(2) Hearing involves the Admissibility of a confession; or
(3) Witness-defendant in a criminal case requests.

Question 8

Unavailability of a Witness

Answer 8

Events that constitute unavailability as a witness include:
(PRIM)

1. Privilege,
2. Refusal,
3. Incapacity/death, or
4. Lack of Memory.

And/or inability to be reached by a subpoena.

Question 9

Self-Authenticating Documents

Answer 9

Extrinsic evidence of authenticity as a condition precedent to admissibility is NOT required with respect to

1. Certified documents,
2. Official publications,
3. Newspapers and periodicals,
4. Trade inscriptions,
5. Acknowledged documents, and
6. Commercial paper.

Question 10

Learned Treaties Hearsay Exception

Answer 10

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.

The jury is not allowed to bring learned treatises into the jury room. There is a concern that if juries were allowed unrestricted access to the whole publication, they might rely on parts of the publication that are not germane to the case.

Intent of the rule is that juries need to be guided through the pertinent parts of the publication by the testifying experts.

Question 11

Character Evidence Definition

Answer 11

Character evidence refers to a person’s general propensity or disposition for honesty, peacefulness, or violence.

Question 12

Subsequent Remedial Measures

Answer 12

Evidence of remedial measures taken subsequent to any injury or harm are not admissible to prove negligence or culpable conduct.

However, may be admitted to prove ownership, control, or feasibility of precautionary measures.

Question 13

Habit Evidence

Answer 13

Evidence of a person’s habit or an organization’s routine practice is admissible to show that on a particular occasion, the person or organization acted in accordance with that habit or routine.

Habit: Any action done automatically and routinely without forethought.

Question 14

Beyond a Reasonable Doubt Standard

Answer 14

The “beyond a reasonable doubt” standard of proof applies to criminal trials as to each element of the crime charged.

Any doubt that exists wouldn’t affect a reasonable person’s belief that the fact is true.

Question 15

Preponderance of the Evidence Standard

Answer 15

The “preponderance of the evidence” standard of proof applies to civil cases. A preponderance of the evidence is “just enough evidence to tip the balance in favor of the fact.

Question 16

Judicial Notice

Answer 16

A substitute for proof where the court accepts certain facts as true. Applies to facts that are not subject to dispute that are facts commonly known in the territory and easily verifiable facts by sources whose accuracy cannot be questioned.

In civil cases, the jury must accept the fact as true, but in criminal cases the jury cannot be required to find a fact as true.

Question 17

Effect of Judicial Notice on a Jury

Answer 17

A civil jury MUST take a judicially noticed fact as true, whereas a criminal jury MAY take a judicially noticed fact as true (cannot be required).

Question 18

Burden of Production in a Civil Case

Answer 18

The plaintiff has the burden of production in a civil case to present evidence.

Question 19

Burden of Production in a Criminal Case

Answer 19

Prosecution has the burden of proof of establishing all elements of the crime charged.

Question 20

Burden of Persuasion

Answer 20

The degree to which the evidence must be proven. Either by a preponderance of the evidence, clear and convincing, or beyond a reasonable doubt.

Question 21

Test for Relevancy of Evidence

Answer 21

Evidence is relevant if it (1) has any tendency to make a fact more or less probable than it would be without, and (2) it is a fact of consequence.

Relevant evidence must have some probative value and be helpful to the jury in deciding the case.

Relevant evidence is generally admissible.

Question 22

Rule 403 Balancing Test

Answer 22

Relevant evidence may be excluded if it’s probative value is substantially outweighed by a danger of:
- Unfair prejudice;
- Confusing the issues;
- Misleading the jury;
- Undue delay;
- Wasting time; or
- Cumulative evidence.

Sets a generally low bar for admissibility. To be excluded, the evidence must be substantially more prejudicial than probative.

The Rule 403 balancing test favors admission.

Question 23

Types of Character Evidence

Answer 23

Reputation, opinion, or specific acts.

Question 24

Character Evidence as an Element/At Issue

Answer 24

Character evidence will be admissible if it is necessary to prove an element of the claim/charge. (D’NICE)

1. Defamation.
2. Negligent entrustment/hiring/supervision.
3. Immigration.
4. Child custody.
5. Entrapment.

Question 25

Exceptions to the Ban on Character Evidence

Answer 25

1. A criminal ∆ can offer evidence of their **own pertinent character traits**. Opens the door to the prosecution presenting character evidence to rebut. 2. A criminal ∆ can offer pertinent character evidence of the **victim** in a *homicide* case, when bringing a claim of *self-defense*. Opens the door to the prosecution presenting character evidence to rebut and also can present evidence of the ∆'s same trait. 3. In a homicide case, the prosecution can show evidence of a victim's trait for peacefulness. 4. Can offer character evidence of **past sexual encounters** *between the two parties* to show consent. 5. Can offer character evidence of a victim's past sexual encounters to show that semen/injuries came from a different sexual encounter than the ∆'s

Question 26

Conformity Character Evidence

Answer 26

The general rule is that evidence of a person's propensity to conform with a particular character trait is inadmissible. 5 exceptions: - When a criminal ∆ offers the evidence first. - When the prosecution can offer evidence of the victim's trait of peacefulness in a homicide case. - Rape Shield laws. - Sexual predators.

Question 27

Admissibility of Pleas

Answer 27

Evidence of pleas are inadmissible, as long as the statement was actually made to a prosecutor (not a police officer or any other lawyer).

Question 28

Marital Communication Privilege vs. Spousal Immunity

Answer 28

**Marital Communications**: Protects confidential communications between parties DURING the marriage. Parties do not have to be married at trial, but the communications sought to be privileged must have been made during the marriage. *Exceptions* — suits between spouses, domestic abuse, or joint participation in a crime. **Spousal Immunity**: Protects everything before or during the marriage. Parties must be married at the time of trial. The testifying witness holds the privilege; one spouse cannot prevent the other spouse from testifying. ONLY APPLIES IN CRIMINAL CASES.

Question 29

Work Product Doctrine

Answer 29

Work product is any material prepared **in anticipation of litigation**. Work product is privileged and does not have to be disclosed in discovery. Exception: If the other party can show that there is *substantial hardship*, and that there is *no other way* to obtain the evidence.

Question 30

Exceptions to Attorney-Client Privilege

Answer 30

- Future crimes or fraud; - Suits between attorney and client; - "Joint-client" exception.

Question 31

4 Privileges

Answer 31

1. Attorney/client; 2. Therapist/patient; 3. Clergy/penitent; 4. Spousal testimony/communication.

Question 32

Human Declarant

Answer 32

A hearsay statement must be made by a human declarant, not an animal or machine. A dog barking, machine print out, time/temperature display, or radar measurement would not be hearsay.

Question 33

"Statement" (Hearsay)

Answer 33

An intentional oral or written assertion, or intentionally assertive conduct.

Question 34

Hearsay

Answer 34

A declarant's out of court statement offered to prove the truth of the matter asserted.

Question 35

Clear and Convincing Evidence

Answer 35

Significantly more likely to be true than to not be true. Evidence presented has a "high probability of truth". Applies to civil cases such as fraud, validity of a will, etc.

Question 36

When is Character Evidence Permitted

Answer 36

**Impeachment**: Can impeach the character for *truthfulness*. **Element**: When character is an essential element being proven. Propensity evidence is **NOT** admissible, unless the defendant opens the door in a criminal trial.

Question 37

Character Evidence for Impeachment

Answer 37

Character evidence is allowed in two forms to prove or disprove the trait of **honesty**. Can impeach by *reputation* or *opinion* evidence, but never specific acts on direct examination. Can also impeach by *prior bad acts*, however, extrinsic evidence is not permitted.

Question 38

"Prior Bad Acts" Evidence

Answer 38

Character evidence of prior bad acts is inadmissible to show conforming conduct, however, may be admissible to prove motive, intent, mistake, identity, a common scheme or plan, knowledge, opportunity, or lack of accident. Basically, as long as it is not being offered to establish that someone is acting in conformity with their character.

Question 39

Subsequent Remedial Measures

Answer 39

Evidence of subsequent remedial measures are inadmissible to prove negligence or culpability, however, they may be admissible to show **ownership/control**, **feasibility of precautionary measures**, or to **impeach** a witness.

Question 40

Excited Utterance

Answer 40

Hearsay exception. A statement made relating to a startling event **made while under the stress of the event**. Does NOT have to be immediate as long as they are still under the stress of the event.

Question 41

Present Sense Impression

Answer 41

Hearsay exception. A statement made by a declarant describing or explaining an event or condition made **while or immediately after perceiving it**. Must be SAYING IT while they're SEEING IT.

Question 42

Hearsay Exemptions

Answer 42

Are NOT hearsay. 1. Statement by a **party opponent**. 2. Statement of **prior identification**. 3. **Prior consistent statement**. 4. **Prior inconsistent statement**.

Question 43

Non-Hearsay

Answer 43

Evidence that is not being offered for the truth of the matter asserted, so cannot be excluded as hearsay. Includes evidence regarding: - The capacity of a witness to see, hear, or speak; - The effect of a statement on the listener; - Legally operative facts (defamatory words, words creating a contract, etc.); - Verbal acts; - Impeachment; - State of mind. Also includes: - Statements by a Party Opponent - Statements by a Party's Agent/Co-Conspirator - Prior Inconsistent Statements

Question 44

Crawford Rule

Answer 44

The Confrontation Clause will trump the hearsay rule. If there is _testimonial_ hearsay in a criminal case, it will be inadmissible unless the ∆ is given the opportunity to cross-examine the declarant. **"Testimonial"**: Statements made in reasonable expectation that it will be used in litigation. Exceptions: Dying declarations, child witnesses, or statements made to address an ongoing emergency.

Question 45

Methods of Impeachment

Answer 45

1. Prior inconsistent statements. 2. Bias and interest. 3. Conviction of a crime. 4. Prior bad acts (re: truthfulness or untruthfulness; extrinsic evidence not permitted). 5. Reputation or opinion for untruthfulness. 6. Sensory deficiencies. 7. Contradiction.

Question 46

Reliability of Expert Testimony

Answer 46

Apply the **Daubert** test. (It's a TRAP!) - Has the theory been **T**ested? - What is the degree/**R**ate of error? - Is there general **A**cceptance in the scientific community? - Has the method been **P**eer reviewed? Minority rule: Frye; general acceptance in the scientific community.

Question 47

Scope of Lay Witness Testimony

Answer 47

"Common sense and common knowledge." Includes testimony regarding: - The value of one's own property; - The emotional state of others; - Measurements (speed, height, weight) - Physical states (healthy, short, etc.) - Sensory descriptions (smell, sound, color).

Question 48

Hearsay Exceptions that Require Unavailability

Answer 48

1. Former testimony. 2. Dying declaration. 3. Declaration against interest. 4. Statement of personal/family history. 5. Forfeiture by wrongdoing (witness intimidation).

Question 49

When is the original not required under the Best Evidence Rule?

Answer 49

- When the issue is **collateral**. - When the original is **lost**. - When the opponent **refuses to turn it over**. - When it is **testimony or an admission**. - When it can't be acquired by **subpoena**.

Question 50

Best Evidence Rule

Answer 50

Where the contents of a document are **at issue**, the **original** copy of the document is required. No testimony as to the contents of the documents are allowed unless the original is **excused**. Reduces the risk of fraud, forgery, or mistake. Duplicates ARE admissible unless there is an issue of authenticity.

Question 51

Self-Authenticating Documents

Answer 51

1. Certified documents; 2. Official publications; 3. Newspapers or periodicals; 4. Trade inscriptions (Nike swoosh, etc.); 5. Acknowledged documents (notarized); 6. Commercial paper.

Question 52

How to Authenticate Documents

Answer 52

By testimony of someone with personal knowledge or familiarity of the item, or if the item is self-authenticating.

Question 53

Exceptions that Require the Declarant to be Unavailable

Answer 53

(Evidence sucks a FFAT D) - **F**amily History + **F**orfeiture by Wrongdoing - **A**gainst Interest (Statement against interest) - **T**estimony (Former) - **D**ying Declaration

Question 54

Exceptions When the Declarant is Available OR Unavailable

Answer 54

- Present sense impression - Excited utterance - Statement made for purposes of medical treatment or diagnoses - Business/public records - Recollection recorded - Then-existing state of mind - Prior statement of identification

Question 55

Hearsay Exemptions/Non-Hearsay

Answer 55

Statement by a party opponent, statement by a party opponent's agent or co-conspirator, prior inconsistent statements.

Question 56

Lay Witness Testimony

Answer 56

A witness must have knowledge of the matter that they testify about. A lay witness must have **personal knowledge**. Opinion must be *rationally based on their perception*, *helpful*, and NOT based on *scientific, technical, or specialized knowledge*.

Question 57

Expert Witness Testimony

Answer 57

An expert witness, unlike a lay witness, does not need personal knowledge, and instead, can testify based on *facts that they have learned during the trial*, or through some other means.

Question 58

Past Convictions as Impeachment

Answer 58

A prior conviction can be used to impeach a witness in certain circumstances. _Nature of the crime_ — Either a felony or misdemeanor relating to dishonesty; or any felony if it passes the balancing test) _Time of the crime_ — Must be within 10 years of the conviction or release from imprisonment. If more than 10 years has passed, it is generally not admissible. _If the Witness is the Defendant in a Criminal Trial_ — A prior conviction is LESS likely to be admitted for impeachment if the witness is a defendant in their own criminal trial because the probative value must outweigh its prejudicial effect, which is unlikely.

Question 59

Offer to Pay Medical Expenses

Answer 59

Not admissible to prove **liability** or **the existence of an injury**.

Question 60

Offer to Settle

Answer 60

Not admissible to prove the **validity of a _disputed_ claim**.

Question 61

Insurance

Answer 61

The existence of an insurance policy is not admissible to prove liability, but may be used to prove agency, ownership & control, or impeachment.

Question 62

Sixth Amendment Confrontation Clause

Answer 62

If a statement is *testimonial*, the declarant is *unavailable*, and the defendant did not have the opportunity to **cross-examine** the declarant, then admission of the statement may violate the defendant's right to confrontation. However, a statement is NOT "testimonial" if the primary purpose of the statement is to address an **ongoing emergency**.

Question 63

Physician-Patient Privilege

Answer 63

A patient is privileged to refuse to disclose (and to prevent any other person from disclosing) confidential communications **made for the purpose of diagnosis or treatment** of his physical, mental, or emotional condition. The privilege extends to people participating in the diagnosis or treatment under the direction of a physician (like a nurse). Does NOT apply to rescuers.

Question 64

Prior CONSISTENT Statements

Answer 64

A declarant's prior consistent statements are NOT hearsay if the declarant is testifying and subject to **cross examination**, and the prior consistent statement is being offered to: 1. Rebut an allegation that the witness-declarant **fabricated their statement**, or acted under an improper motive in testifying; or 2. To rehabilitate the declarant's credibility as a witness.

Question 65

Prior INCONSISTENT Statements

Answer 65

A declarant's prior inconsistent statements are NOT hearsay if the declarant is testifying and subject to cross examination, and the statement is inconsistent with the declarant’s testimony **and was given under penalty of perjury** at a trial, hearing, or other proceeding or in a deposition.

Question 66

Certificate of Conviction Hearsay Exception

Answer 66

FRE 803(22) allows admission of an otherwise hearsay certificate of conviction if: (1) the conviction is for a **felony offense**; and (2) it is necessary to prove an **essential element** in the civil case.

Question 67

Public Records Hearsay Exception

Answer 67

FRE 803(8) allows admission of an otherwise hearsay record or statement of a public office if it sets out: (1) the office's activities; (2) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law enforcement personnel; or (3) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation.

Question 68

Dying Declaration

Answer 68

Admissible when: (1) The declarant is **unavailable**; (2) the declaration was **made while the declarant believed his death was imminent**; (3) the declaration **concerned the cause or circumstances** of what the declarant believed to be his imminent death; and (4) the declaration is offered in either a _homicide_ prosecution OR a civil proceeding. The FRE broadened the traditional use of dying declarations in that the declarant need not die (only be unavailable) and the declaration can be used in civil actions. ## Footnote The FRE broadened the traditional use of dying declarations in that the declarant need not die (only be unavailable) and the declaration can be used in civil actions.

Question 69

Preliminary Questions of Admissibility

Answer 69

FRE 104 include: (1) The **competency** of a witness to testify; (2) Whether a **hearsay exception** applies; or (3) Whether a **privilege** exists.

Question 70

Other Admissible Reasons for Admitting Character Evidence

Answer 70

MIMIC To prove Motive, Intent, (absence of) Mistake, Identity, or a Common plan or scheme.

Question 71

Business Records Exception

Answer 71

Hearsay exception. It's easy as ABC! (1) At or near the time of occurrence, (2) By someone with knowledge of the event and a duty to record, and (3) made in the Course of business.