Evidence

Question 1

rule for probative evidence

Answer 1

evidence has a tendency to make a fact more or less probable

Question 2

rule for material evidence

Answer 2

evidence is of consequence in deciding

Question 3

when can you exclude relevant evidence

Answer 3

probative value is substantially outweighed by range of unfair prejudice

Question 4

rule for relevance dependent on existence of fact

Answer 4

must have sufficient evidence that fact does exist and so it can be admitted on condition that the fact is later introduced

Question 5

rule for character evidence in civil case

Answer 5

inadmissible to show person acted with accordance of a particular trait on a particular occasion

exception: trait is an element

Question 6

rule for character evidence in criminal case

Answer 6

∆’s character
- by prosecution: not allowed to show propensity
- by defense: ∆ can put on evidence of good character using reputation or opinion – but opens the door

victim’s character
- by defense: can put on evidence but opens the door for prosecution to rebut victim’s character AND come after∆ for that same trait

Question 7

when can you use specific bad acts

Answer 7

ONLY for non TOMA purposes:

Motive
Intent
Absence of Mistake
Identity
Common plan

can ask witness about specific bad acts on cross

Question 8

test for witness competence

Answer 8

takes oath to tell truth
personal knowledge
knows difference between true and false

Question 9

methods to impeach witness

Answer 9

1. bias
2. defects in memory/perception
3. showing bad character for truthfulness

Question 10

methods for impeaching a witness with bad character for truthfulness

Answer 10

1. prior bad acts
2. prior convictions
3. reputation evidence
4. prior inconsistent statements
5. contradicting with counter proof

Question 11

how do you use prior bad (un convicted) acts to impeach witness by showing bad character for truthfulness

Answer 11

• can only do it on cross
• can ask about an act that shows untruthfulness
• but only intrinsic evidence allowed so must accept answer

Question 12

how do you use prior convictions to impeach witness for bad character for truthfulness

Answer 12

• must be felony or dishonest misdemeanor
• within last 10 years

Question 13

how do you rehab witness

Answer 13

allow witness to explain on redirect
show good character
show prior consistent

Question 14

how do you use present recollection refreshed

Answer 14

o Establish that witness can’t remember
o Ask witness if it would be helpful to see specific document
o Show document to witness
o Confirm it helped
o Take document away and proceed
o Evidence is the testimony, not the document

Question 15

test for if someone can be an expert witness

Answer 15

 Testimony is based on sufficient facts and data
 Testimony is product of reliable principles and methods
 Witness has applied those principles and methods

Question 16

when can lay witness offer opinion

Answer 16

Anyone can offer opinions as long as
 Rationally based on witness’s perception
 Helpful to clear understanding or determination of fact

Question 17

four step analysis for hearsay

Answer 17

• is it relevant? Non TOMA purposes?
• is it non hearsay?
• do any hearsay exceptions apply?
• if criminal: any 6th amendment confrontation issues?

Question 18

what are the non TOMA purposes

Answer 18

• Impeachment
• Verbal act
• Effect on listener
• Verbal object/marker
• Circumstantial evidence of state of mind
• Circumstantial evidence of special knowledge

Question 19

what is non hearsay

Answer 19

 Prior inconsistent statement by declarant witness
 Prior consistent statement by witness
 Prior statement of identification by witness
 Statement by party opponent

Question 20

what counts as statement by party opponent

Answer 20

• His own statement
• Statement he adopted with silence
• Someone he authorized or his agent
• Co conspirator

Question 21

What are the unrestricted hearsay exceptions

Answer 21

1. present sense impression
2. excited utterance
3. then existing mental, physical, emotional condition
4. medical treatment
5. past recollection recorded
6. business records
7. public records
8. learned treatise

Question 22

what are the hearsay exceptions if witness is unavailable

Answer 22

1. former testimony
2. dying declaration
3. statement against interest
4. statement of personal or family history
5. statement by someone ∆ prevented coming to trial

Question 23

five requirements for hearsay

Answer 23

1. out of court
2. statement
3. by a qualifying declarant
4. offered for truth of the matter
5. not prior statement by declarant witness or statement by party opponent

Question 24

how do you authenticate physical objects

Answer 24

Usually personal knowledge, distinct characteristics, chain of custody

Question 25

how do you authenticate photos

Answer 25

someone with personal knowledge

Question 26

how do you authenticate x rays

Answer 26

have to show machine was working and everything done correctly

Question 27

how do you authenticate documents

Answer 27

stipulation, eyewitnesses, handwriting ancient: 20 years old, in place where it makes sense to be

Question 28

how do you authenticate oral statements

Answer 28

voice: anyone who has ever heard it can ID telephone: recognize voice, speaker knew stuff, number was his, he identified self

Question 29

what is the best evidence rule

Answer 29

original document must be brought to court to prove contents of document when the CONTENTS are at issue duplicates ok if no suspicion original not required if destroyed/lost in good faith

Question 30

what is the parole evidence rule

Answer 30

Complete integration: no extrinsic evidence Partial integration: evidence that adds but does not contradict is admissible

Question 31

when is parole evidence always ok

Answer 31

o Clarify ambiguity o Prove course of dealings o Show fraud/duress/mistake o Show presence/absence of consideration

Question 32

describe spousal privilege

Answer 32

Don’t have to testify against spouse (Ends on divorce) Confidential marital communications (lasts forever)  Majority view: both spouses hold privilege and can stop the other from testifying

Question 33

define attorney client privilege and exceptions

Answer 33

Confidential communication for purpose of receiving legal advice  Crime fraud  Dispute  Former co-clients now adverse

Question 34

what is the work product doctrine

Answer 34

documents prepared in anticipation of litigation are protected unless i) substantial need and ii) undue hardship

Question 35

what do we not consider as evidence due to public policy

Answer 35

- Subsequent remedial measures - Compromise offers and negotiations - Insurance - Sexual conduct

Question 36

when can you discuss victim's sexual history

Answer 36

can use to show ∆ wasn’t source of physical evidence, if character placed in issue by victim, probative value substantially outweighs prejudice

Question 37

when can you talk about ∆'s sexual conduct

Answer 37

sexual assault or diddling case

Question 38

test for if statement was testimonial

Answer 38

was the main objective emergency assistance? o Could speaker anticipate this being told in court?

Question 39

when is sixth amendment right to confront waived

Answer 39

if declarant is unavailable because of ∆

Question 40

Rule 403 balancing test says exclude evidence if the probative value is substantially outweighed by danger of:

Answer 40

* Unfair prejudice * Confusion of the issues * Misleading the jury * Undue delay/waste of time or * Needless presentation of cumulative evidence

Question 41

in essays, remember to always discuss ____ first

Answer 41

relevance! Relevant if makes material fact more or less likely Explain how that fact helps case

Question 42

expert evidence is admissible if it

Answer 42

relevant: will help trier of fact understand the evidence or determine a fact in issue AND reliable: based on sufficient facts /data and reliable principles /methods party seeking to admit must prove by preponderance

Question 43

when does defendant forfeit right to hearsay/confrontation clause because he made the declarant unavailable

Answer 43

when proved by preponderance of evidence that he wrongfully caused declarant's unavailable did so intending to keep witness form talking

Question 44

when does a party have to object if they want to preserve the right to challenge the admission of evidence on appeal

Answer 44

at the first opportunity and must state the grounds for the objection