Evidence

Question 1

When does a statement by an unavailable declarant qualify as a “statement against interest” hearsay exception?

Answer 1

If the statement:

(i) Was against the declarant’s interest at the time it was made; and

(ii) Would not have been made by a reasonable person unless he believed it to be true.

Question 2

With respect to preliminary questions of admissibility, who has the burden of persuasion?

Answer 2

The party offering the evidence ordinarily bears the burden of persuasion.

Note: The party offering the evidence is often referred to as the moving party, or the proponent.

Question 3

List three examples of preliminary questions of admissibility that a judge, rather than a jury, would determine.

Answer 3

(i) the admissibility of evidence; (ii) whether a privilege exists; (iii) whether a person is qualified to be a witness.

Note: Judges also determine whether an exception would apply to allow hearsay into the record.

Question 4

Who bears the burden of production in a civil case?

Answer 4

The moving party in a civil case is the plaintiff. Therefore the plaintiff bears the burden of production, or moving forward, with the evidence.

Note: Failure to meet this burden could result in a directed verdict against the party bearing the burden.

Question 5

When are leading questions proper on direct examination?

Answer 5

Leading questions are proper on direct examination when necessary to develop the witness’s testimony, including (i) preliminary background matters, (ii) hostile witnesses, and (iii) minors or those with difficulty communicating.

Question 6

When may an expert testify as to facts and data that the expert has not personally observed?

Answer 6

When experts in the particular field would reasonably rely on those kinds of facts and data in forming an opinion on the subject.

Note: If such facts are inadmissible, the proponent nevertheless may disclose them to the jury if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.

Also note: An expert may state an opinion and give the reasons for it without first testifying as to the underlying facts or data, unless the court orders otherwise.

Question 7

Who bears the burden of production in a criminal case?

Answer 7

The moving party in a criminal case is the prosecution. Therefore the government bears the burden of production, or moving forward, with the evidence.

Note: Failure to meet this burden could result in a judgment of acquittal.

Question 8

When may a witness be impeached by evidence of a juvenile adjudication?

Answer 8

Evidence of a juvenile adjudication is NOT admissible against a defendant. Another witness may be impeached by evidence of a juvenile adjudication, but ONLY IF:

(i) it is offered in a criminal case,
(ii) an adult’s conviction for that offense would be admissible to attack the adult’s credibility; and
(iii) admitting the evidence is necessary to fairly determine guilt or innocence.

Note: Remember, regardless of how probative a juvenile adjudication might be, if it is being used against a criminal defendant, it is inadmissible

Question 9

What five hearsay exceptions only apply when the hearsay declarant is unavailable?

Answer 9

(1) Former testimony;

(2) Dying declaration;

(3) Statement against interest;

(4) Statement of personal or family history;

(5) Statement offered against a party that wrongfully caused the declarant’s unavailability

Question 10

What are the three types of prior statements by a declarant witness that are defined by the FRE as non-hearsay?

Answer 10

(1) Prior inconsistent statements made under penalty of perjury;

(2) Prior consistent statements admitted to (i) rehabilitate the witness’s credibility or (ii) rebut a suggestion of recent fabrication or improper motive, as long as the prior statement was made before the witness had reason to fabricate;

(3) Prior statements of identification of a person after perceiving that person

Question 11

At what time can a court take judicial notice?

Answer 11

Judicial notice can be taken at any time during a proceeding, including on appeal, whether upon request of a party or by the court’s own initiative.

Note: The court may not take judicial notice against a criminal defendant for the first time on appeal from a criminal jury (but may from a bench trial/civil jury).

Question 12

What are three ways in which tangible evidence (e.g., murder weapon) may be authenticated?

Answer 12

1. By testimony of personal knowledge of the object;
2. By testimony of its distinctive characteristics;
3. By chain of custody when a physical object that could easily be tampered with or confused with a similar item (e.g., a blood sample)

Question 13

List three examples of habit evidence.

Answer 13

Habit can be the regular practice of a business or an individual. Examples can be positive (always) or negative (never).

Examples: (i) a company “routinely” matches employee’s charitable contributions, (ii) a person “never” smokes, (iii) a person “always” wears a seatbelt.

Question 14

What are five non-hearsay uses for out-of-court statements (i.e. uses that prove something other than the truth of the matter asserted)?

Answer 14

A statement is non-hearsay if offered:

(1) To prove that the statement was made (i.e., as legally operative fact);

(2) To show the effect on the recipient;

(3) As circumstantial evidence of the declarant’s state of mind (or their world view/belief system);

(4) As circumstantial evidence of identity; or

(5) Solely to impeach or rehabilitate.

Question 15

What is the plain error rule?

Answer 15

A plain error is one that is obvious to the reviewing court. A plain error that affects a substantial right is grounds for reversal, even if no objection was made.

Question 16

What criminal convictions may be used as impeachment evidence?

Answer 16

Convictions for crimes involving dishonesty/false statement can be used to impeach any witness, regardless of the punishment imposed or the prejudicial effect.

Convictions for felonies not involving dishonesty/false statement are admissible to impeach:

(a) A criminal defendant only if its probative value outweighs its prejudicial effect; or

(b) Any other witness, unless the probative value is substantially outweighed by its prejudicial effect.

Note: These convictions are subject to the 10-year restriction.

Question 17

What four categories of witnesses may not be excluded from the courtroom to prevent them from hearing the testimony of other witnesses?

Answer 17

(i) A party who is a natural person;

(ii) An officer or employee of a party that is not a natural person if that officer or employee has been designated as the party’s representative by its attorney, including the investigating officer;

(iii) Any person whose presence is essential to a party’s presentation of its case; and

(iv) A person whose presence is permitted by statute (e.g., victims).

Question 18

What is the difference between the application of a Dead Man’s Statute in a criminal case versus a civil case?

Answer 18

Dead Man’s Statutes do not apply in criminal cases. In civil cases, a party with a financial interest in the outcome of a case is not permitted to testify adversely about a communication or transaction with a person whose estate is a party to the case.

Note: The rationale is to protect a decedent’s estate from parties who claim the decedent said or did something that affects the financial outcome of the case. The Federal Rules do not include a Dead Man’s Statute. This may arise in the context of a federal court applying state law (i.e., diversity cases) if the fact pattern specifically says that the jurisdiction has a Dead Man’s Statute.

Question 19

What is the “rape shield” rule?

Answer 19

Evidence offered to prove the victim’s sexual behavior/predisposition is generally inadmissible in any proceeding involving sexual misconduct (civil or criminal). However, such evidence may be admitted if the court determines, at an in camera hearing, that the probative value of the evidence substantially outweighs the danger of harm to the victim and unfair prejudice to any party

Question 20

What is the difference between direct and circumstantial evidence?

Answer 20

Direct evidence is identical to the factual proposition that it is offered to prove. An example is witness testimony as to what the witness personally heard, saw, or experienced. Circumstantial evidence tends to indirectly prove a factual proposition through an inference from collateral facts.

Example: A witness seeing the defendant shoot the victim (direct evidence the defendant shot the victim), versus seeing the defendant holding a gun while exiting an alley where a person is lying on the ground bleeding from a gunshot wound (circumstantial evidence the defendant shot the victim).

Question 21

When may the prosecution offer evidence of an alleged victim’s good character in a criminal case?

Answer 21

The prosecution can offer:

(i) Rebuttal evidence of a victim’s good character when the defendant has introduced evidence of the victim’s bad character; and

(ii) Evidence of the victim’s character trait for peacefulness in homicide cases to rebut evidence that the victim was the first aggressor.

Question 22

When are specific instances of conduct admissible as impeachment evidence?

Answer 22

On cross-examination, a witness may be asked about specific instances of conduct as long as:

(1) It is probative of the truthfulness or untruthfulness of the witness or another witness about whose character the witness being cross-examined has testified; and

(2) The lawyer who examines the witness has a good-faith basis for believing that the misconduct occurred.

Note: The judge may refuse to allow such questioning of a witness under either Federal Rule 403 (the probative value is substantially outweighed by the danger of unfair prejudice) or Federal Rule 611 (protection of the witness from harassment or undue embarrassment).

Question 23

What are the two ways that a criminal defendant may “open the door” for the prosecution to introduce bad character evidence about the defendant?

Answer 23

The defendant opens the door to evidence of his own character if the defendant introduces evidence of:

(i) The defendant’s good character; or

(ii) The victim’s bad character.

The prosecution may rebut the defendant’s claims by attacking the defendant’s character.

Question 24

When is character evidence admissible in civil cases, and in what forms?

Answer 24

When character evidence is an essential element of a claim or defense.

When admissible in a civil case, character may be proved by reputation, opinion, and specific instances of a person’s conduct.

Question 25

When the relevance of evidence depends upon whether a fact exists, what standard is applied to determine whether sufficient evidence has been introduced to support a finding that the fact does exist?

Answer 25

The court must examine all of the evidence and decide whether the jury could reasonably find the conditional fact by a preponderance of the evidence. Note: The court itself is not required to find that the conditional fact exists by a preponderance of the evidence.

Question 26

How may a party to a telephone conversation authenticate statements made during that conversation as having been made by a particular individual?

Answer 26

By testifying that: (i) The caller recognized the speaker’s voice; (ii) The speaker knew facts that only a particular person would know; (iii) The caller dialed a number believed to be the speaker’s, and the speaker identified himself upon answering; or (iv) The caller dialed a business and spoke to the person who answered about business regularly conducted over the phone. Note: Remember that a voice can be identified by any person who has heard the voice at any time, including one made familiar solely for the purposes of litigation.

Question 27

When is silence in response to a statement considered an adoptive admission?

Answer 27

(i) The person was present and heard and understood the statement; (ii) The person had the ability and opportunity to deny the statement; and (iii) A reasonable person similarly situated would have denied the statement. Note: Post-arrest silence by a defendant who has received Miranda warnings may not be used as an adoptive admission of a statement made by another person.

Question 28

What is required for evidence to be "relevant?"

Answer 28

Evidence is relevant if: (i) It has any tendency to make a fact more or less probable than it would be without the evidence (i.e., probative); and (ii) The fact is of consequence in determining the action (i.e., material).

Question 29

In what six situations does the physician-patient privilege not apply?

Answer 29

(i) The information was acquired for reasons other than treatment; (ii) The patient’s physical condition is at issue; (iii) The communication was made as part of the commission of a crime or tort; (iv) A dispute exists between the physician and the patient; (v) The patient contractually agreed to waive the privilege; or (vi) A case is brought in federal court and state law does not apply (e.g., most cases that involve a federal question).

Question 30

What are the two spousal privileges?

Answer 30

Spousal Immunity: For the duration of their marriage, a married person cannot be compelled to testify against their spouse in any criminal proceeding. Confidential Marital Communications: Communication made between spouses while they were married is privileged.

Question 31

In a criminal homicide trial in which the defendant is claiming self defense, what evidence is the prosecution allowed to present about the character of the victim?

Answer 31

In a criminal prosecution for homicide, the prosecution is permitted to offer evidence of the alleged victim's trait for peacefulness to rebut evidence that the alleged victim was the first aggressor. Note: This is not considered opening the door, rather it is creating an even playing field for the jury. Since the defendant claims self-defense was justified due to the alleged victim being the initial aggressor, and the alleged victim is unable to testify, the jury can determine whether the victim was the type of person who would have initiated force.

Question 32

What is limited admissibility?

Answer 32

Limited admissibility means that evidence may be admissible for one purpose but not for another, or against one party but not against another. In these cases, if a party makes a timely request, the court must restrict the evidence to its proper scope and instruct the jury accordingly. A common example is when a criminal defendant is testifying. The defendant has now put credibility in issue, and impeachment with a prior conviction might be admissible. The defendant's attorney would make a request to have the court instruct the jury that the conviction should only be used for the limited purpose of assessing credibility, rather than determining guilt or innocence.

Question 33

For what two purposes are compromise offers and negotiations inadmissible as a public policy exclusion?

Answer 33

Compromise offers and any conduct or statements made during compromise negotiation are inadmissible by either party: (i) To prove or disprove the validity or amount of a disputed claim; or (ii) For impeachment by a prior inconsistent statement or contradiction.

Question 34

What are the two methods by which handwriting can be authenticated?

Answer 34

1. An expert witness or the trier of fact may compare the writing in question with another writing that has been proven to be genuine; or 2. A lay witness with personal knowledge of the claimed author’s handwriting may authenticate the handwriting, as long as the witness did not become familiar with the handwriting for the purposes of the current litigation.

Question 35

What are three instances in which specific acts are admissible in criminal cases?

Answer 35

1. When character is an essential element of a charged crime (or of a defense) and a defendant offers specific acts inconsistent with the crime; 2. For non-propensity purposes (e.g., “MIMIC” evidence (Motive, Intent, absence of Mistake, Identity, or Common plan)); and 3. When a character witness is asked on cross-examination about specific acts committed by the person about whom the witness is testifying.

Question 36

What are the four requirements to admit a record under the recorded recollection hearsay exception?

Answer 36

(i) The record is on a matter that the witness once knew about; (ii) The witness made/adopted the record when the matter was fresh in the witness’s memory; (iii) The record accurately reflects the witness’s knowledge; and (iv) The witness states that she cannot recall the event well enough to testify fully and accurately, even after consulting the record on the stand.

Question 37

What requirements must be met for the opinion of a lay witness to be admissible?

Answer 37

The opinion must be: (i) Rationally based on the perception of the witness; and (ii) Helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue. Additionally, the opinion must not be based on scientific, technical, or specialized knowledge.

Question 38

What two elements do the Confrontation Clause of the Sixth Amendment require in order for out-of-court testimonial statements to be used against a criminal defendant?

Answer 38

(i) The declarant must be unavailable; and (ii) The defendant must have had a prior opportunity to cross-examine the declarant. Note: The Confrontation Clause does not preclude the admission of a dying declaration as hearsay, even if the statement is testimonial.

Question 39

What are the three requirements to admit a record under the records of regularly conducted activity (i.e., business records) hearsay exception?

Answer 39

(i) The record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling; (ii) The making of the record was a regular practice of that activity; and (iii) The record was made at or near the time by someone with knowledge.

Question 40

What four requirements must be met for an expert witness to offer opinion testimony?

Answer 40

(i) The witness is qualified as an expert by knowledge, skill, experience, training, or education; (ii) The testimony is based on sufficient facts or data; (iii) The testimony is the product of reliable principles and methods; and (iv) The witness applied the principles and methods reliably to the facts of the case. Note: The expert must also possess a reasonable degree of certainty in her opinion, which may be expressed using language such as “probably.” Also note: While a witness may state an opinion about a matter, even though the opinion embraces an ultimate issue in the case, an expert may not state an opinion about whether a criminal defendant had the requisite mental state of any element of the crime charged or of a defense.

Question 41

What standard of proof applies to the authentication of tangible evidence?

Answer 41

The proponent of the evidence must produce sufficient evidence to support a finding that the thing is what its proponent claims it is. Note: This is a lesser standard than a preponderance of the evidence.

Question 42

When must a preliminary hearing on admissibility be conducted outside the presence of the jury?

Answer 42

When the hearing involves the admissibility of a confession, when the defendant in a criminal trial is a witness and so requests it, or when justice requires it. Note: While many preliminary questions of admissibility are determined in front of the jury, it is the judge who makes the determination, and it is the jury, then, that assigns weight to the evidence.

Question 43

What two questions must the court ask to determine whether the subject matter of an expert's proposed testimony is proper?

Answer 43

(i) Is the subject matter scientific, technical, or other specialized knowledge, (i.e., reliability assessment); and (ii) Will it help the trier of fact understand the evidence or determine a fact in issue (i.e., relevance assessment).

Question 44

What is the proper scope of cross-examination?

Answer 44

The scope of cross-examination is generally limited to the subject matter of the direct-examination and the credibility of the witness. The court has broad discretion in this area.

Question 45

What is the standard for the Rule 403 exclusion of relevant evidence?

Answer 45

Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

Question 46

By what three methods may a witness who has been impeached be rehabilitated?

Answer 46

(i) Explanation or clarification on redirect examination; (ii) Reputation or opinion evidence of his character for truthfulness, if the witness’s character was attacked on that ground; or (iii) A prior consistent statement offered to rebut an express or implied charge that the witness lied due to improper motive or influence.

Question 47

Under what five circumstances is a declarant considered unavailable for the purposes of hearsay exceptions?

Answer 47

An unavailable declarant is a person who: (1) Is exempt on the grounds of privilege; (2) Refuses to testify despite a court order to do so; (3) Lacks memory of the subject matter of the statement; (4) Is unable to testify due to death, infirmity, or physical or mental disability; or (5) Is absent and cannot be subpoenaed or otherwise made to be present.

Question 48

What is the definition of hearsay?

Answer 48

Hearsay is a statement that the declarant makes at a time other than while testifying at the current trial or hearing (i.e., an out-of-court statement) that is offered to prove the truth of the matter asserted. A hearsay statement may be an oral or written assertion and can be nonverbal conduct intended as an assertion. Hearsay evidence is generally inadmissible unless it falls within an exception or exclusion.

Question 49

Describe the manner of proof used for admitting convictions to impeach a witness.

Answer 49

Evidence of a prior conviction may be produced by way of an admission by the witness on direct or cross-examination, as well as by extrinsic evidence. Note: This is a good area to also be thinking about the rule against hearsay and its exceptions (See FRE 803 (22)) and authentication (see FRE 902).

Question 50

What are four exceptions to attorney-client privilege?

Answer 50

Communications that are: (i) Made to enable or aid the commission of what the client knew or should have known was a crime or fraud; (ii) Relevant to a dispute between attorney and client or former client (e.g., a malpractice allegation); (iii) Relevant to a dispute between parties who claim through the same deceased client; and (iv) Between former co-clients who are now adverse to each other.

Question 51

When can evidence that a criminal defendant committed another sexual assault be admitted?

Answer 51

In a criminal case in which a defendant is accused of sexual assault, attempted sexual assault, or conspiracy to commit sexual assault, evidence that the defendant committed any other sexual assault is admissible to prove any relevant matter. Note: The court does have discretion to exclude such evidence under Rule 403 when the probative value is substantially outweighed by the danger of unfair prejudice.

Question 52

When may a judge take notice of an adjudicative fact?

Answer 52

The fact is not subject to reasonable dispute because: (i) It is generally known within the territorial jurisdiction of the trial court; or (ii) It can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.

Question 53

When does the intentional destruction of evidence raise a presumption or inference that such evidence would have been unfavorable to the party that destroyed the evidence?

Answer 53

To be entitled to such an inference, the alleged victim must establish that: (i) The destruction was intentional; (ii) The destroyed evidence was relevant to the issue about which the party seeks such inference; and (iii) The alleged victim acted with due diligence as to the destroyed evidence. Note: This presumption is rebuttable.

Question 54

What does the best evidence rule require, and what are its exceptions?

Answer 54

If the contents of a document are at issue, or a witness is relying on the contents of the document, the best evidence rule requires that the original document be produced to prove its contents, unless: (i) All of the originals are lost or destroyed, and not by the proponent acting in bad faith; (ii) The original cannot be obtained by any available judicial process; (iii) The party against whom the original would be offered (a) had control of the original, (b) was on notice that the original would be the subject of proof, and (c) failed to produce it at the trial or hearing; or (iv) The document is not closely related to a controlling issue.

Question 55

What are the present sense impression and excited utterance hearsay exceptions? Distinguish them.

Answer 55

Present Sense Impression: A statement describing or explaining an event or condition that is made while or immediately after the declarant perceived it Excited Utterance: A statement made about a startling event or condition while the declarant is under the stress of excitement that it caused A present sense impression must be a description of the event, whereas an excited utterance need only relate to the exciting event.

Question 56

When is a judge permitted to be called as a witness in a trial over which she is presiding?

Answer 56

A judge is absolutely barred from testifying as a witness in the trial in which she is presiding. Note: Allowing the judge to testify would corrupt the fact-finding process. The fact-finder is charged with assessing a witness's credibility. If the judge is the fact-finder, assessing her own credibility is impossible. If a jury is the fact finder, the judge's testimony (and other judicial rulings in the trial) may be given too much or too little weight.

Question 57

What two requirements must be met to use a conviction as impeachment evidence if more than 10 years have elapsed since the latter of the conviction or release from confinement?

Answer 57

The conviction is admissible if: (i) Its probative value substantially outweighs its prejudicial effect; and (ii) The proponent gives the adverse party reasonable written notice of intent to use the evidence.

Question 58

What is the rule of completeness?

Answer 58

When a party introduces part of a statement, an adverse party may compel the introduction of an omitted portion of the statement if, in fairness, it should be considered at the same time.

Question 59

To what proceedings do the Federal Rules of Evidence apply? What proceedings are exempted from these rules?

Answer 59

The Federal Rules generally apply to all civil and criminal proceedings before United States district courts, courts of appeal, Bankruptcy Court, and Claims Court, and in proceedings before United States magistrates. Exceptions: (i) The court’s determination of a preliminary question of fact governing admissibility; (ii) Grand jury proceedings; and (iii) Criminal proceedings for: (a) The issuance of a search or arrest warrant or a criminal summons; (b) A preliminary examination in a criminal case; (c) Extradition or rendition; (d) Consideration of bail or other release; (e) Sentencing; and (f) Granting or revoking probation or supervised release.

Question 60

When may a criminal defendant introduce evidence of his own good character?

Answer 60

When the defendant offers reputation or opinion evidence that the defendant's good character trait is pertinent to and inconsistent with the type of crime charged (i.e., the mercy rule).

Question 61

Is evidence of repairs or changes made after an accident admissible to prove negligence, culpable conduct, defective product or design, or an inadequate warning?

Answer 61

When measures are taken that would have made an earlier injury or harm less likely to occur (e.g., repairing an area where a customer slipped), evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defective product or design, or the need for a warning or instruction. Note: Evidence of subsequent remedial measures may be admissible for other purposes, such as impeachment or—if disputed—ownership or control of the cause of the harm (e.g., a car) or the feasibility of precautionary measures.

Question 62

Explain the completeness doctrine.

Answer 62

When a party introduces part of a statement, an adverse party may compel the introduction of an omitted portion of the statement if, in fairness, it should be considered at the same time, such as when the omitted portion explains or clarifies the admitted portion. The adverse party may do so over a hearsay objection. Note: This rule allows the adverse party to have the omitted portion admitted immediately to ensure the finder of fact is not viewing the evidence too narrowly. This is really a rule of fairness.

Question 63

What facts are subject to judicial notice?

Answer 63

Only those facts that are not subject to reasonable dispute because they are either (i) generally known within the territorial jurisdiction of the trial court, or (ii) capable of being accurately and readily determined from sources whose accuracy cannot reasonably be questioned are subject to judicial notice.

Question 64

With respect to preliminary questions of admissibility, what is the burden of persuasion?

Answer 64

The party offering the evidence ordinarily bears the burden to persuade the judge by a preponderance of the evidence. Note: This is also expressed as more likely than not.

Question 65

When is habit evidence admissible?

Answer 65

Evidence of a person’s habit or an organization’s routine is admissible to prove that the person or organization acted in accordance with the habit or routine on a particular occasion. It may be admitted without corroboration or an eyewitness.

Question 66

What is an offer of proof?

Answer 66

An offer of proof is an oral or written explanation of the relevance and admissibility of the evidence being offered by the proponent on the record. Note: An offer of proof is often made outside the presence of the jury as it can include hearsay or otherwise inadmissible evidence that could prejudice the jury.

Question 67

When may "work product" be subject to discovery?

Answer 67

Work product is not subject to discovery unless the party seeking disclosure (i) Demonstrates a substantial need for the information; and (ii) Cannot obtain the information by any other means without undue hardship. Note: The mental impressions, conclusions, and trial tactics of an attorney are always protected from discovery.

Question 68

When is a juror permitted to be called as a witness in a trial in which she is presently a juror?

Answer 68

A juror may not testify as a witness at trial in front of the members of the jury. Note: The fact-finder is charged with assessing a witness's credibility. A juror cannot assess their own credibility as a fact or a character witness. However, a juror may be called before the court (outside the presence of the other jurors) to testify as to anything that might have occured with the trial process itself such as bribes, threats, or failure to follow the court's instructions.

Question 69

What is the "bursting bubble" approach to burden shifting?

Answer 69

A rebuttable presumption no longer has a preclusive effect after the opposing party introduces sufficient evidence to sustain a contrary finding. If contrary evidence is introduced, the burden of persuasion remains on the party who had it originally.

Question 70

When does a statement by an unavailable declarant qualify as a "dying declaration" hearsay exception?

Answer 70

In a civil case or a homicide prosecution, a statement is a "dying declaration" if: (i) The declarant believes that her death is imminent; and (ii) The statement pertains to the cause or circumstances of the death she believes to be imminent. Note: The declarant need not have actually died.

Question 71

What are the two ways to call the court's attention to an allegedly erroneous evidentiary ruling?

Answer 71

If the ruling admits evidence, a party must make a timely objection or motion to strike. If the ruling excludes evidence, a party must make an offer of proof in order to preserve the evidence for appellate review of the ruling.

Question 72

For impeachment purposes, distinguish between the pendency of an appeal of a conviction and a pardon.

Answer 72

A pardon releases the punishment and eliminates the guilt for the offense, so that in the eyes of the law the offender is as innocent as if he had never committed the offense. Evidence of the witness's conviction is not admissible if it has been the subject of a pardon. A witness's conviction may be used for impeachment purposes even if an appeal is pending. Evidence of the pendency is also admissible.

Question 73

What are the three standards of proof?

Answer 73

(i) Preponderance of the evidence (ii) Clear and convincing evidence (iii) Beyond a reasonable doubt

Question 74

What makes evidence testimonial, and when is it admissible?

Answer 74

Evidence is testimonial if it was primarily made for use in a criminal investigation or prosecution. Such evidence is inadmissible unless (1) declarant is unavailable as a witness at trial and (2) the defendant had a prior opportunity to cross-examine the declarant.

Question 75

Does a finding that a witness is qualified as an expert preclude the opposing party from inquiring into matters that might affect the weight given to the witness's testimony?

Answer 75

No

Question 76

If a witness denies a bad act, can the examining party reference consequences of the bad act or otherwise rebut the denial with extrinsic evidence?

Answer 76

No

Question 77

How can reproductions (models, drawings, photographs, maps) be authenticated?

Answer 77

Reproductions may be authenticated by the testimony of a witness with personal knowledge that the reproduction accurately depicts what its proponent claims it does.

Question 78

When must a court exclude witnesses from the courtroom?

Answer 78

If a party so requests, and they don't meet the other exceptions (parties or their designated representatives, persons whose presence is essential to the case, and persons authorized by statute to be present.)

Question 79

What is the absence of public records exception?

Answer 79

Under the absence of public records exception, evidence that a diligent searched failed to locate a public record is admissible to prove that (1) the public record does not exist or (2) a matter regularly kept in public records did not occur. However, this evidence can only be admitted through witness testimony or self-authenticating evidence.

Question 80

Does the best evidence rule apply to real or physical evidence (like a 3D model)?

Answer 80

No, just recordings/writing/photographs (etc)

Question 81

When is extrinsic evidence of a witness's prior inconsistent statement admissible?

Answer 81

Only if the impeached witness has the opportunity to explain or deny-- and the adverse party can examine the witness about-- the statement.

Question 82

Can a defendant knowingly and voluntarily waive the evidentiary protection over statements during plea negotiations?

Answer 82

Yes

Question 83

What rules is a court bound by when deciding preliminary questions of fact related to whether evidence is admissible, a privilege exists, or a witness is qualified?

Answer 83

Only the evidentiary rules regarding privilege.

Question 84

What are the limits on the types of hypothetical questions that parties may ask expert witnesses?

Answer 84

When examining an expert witness, a party may ask a hypothetical question so long as it includes any undisputed material facts-- the question cannot omit undisputed material facts because an expert witness lacks probative value when it was formed without all necessary facts.

Question 85

Is there a specific hearsay exception for civil judgments?

Answer 85

No.

Question 86

What is a curative admission?

Answer 86

When inadmissible evidence (e.g., nonrelevant evidence) is improperly admitted against a party, the court may permit that party to introduce additional inadmissible evidence (e.g., hearsay) for the purpose of rebuttal. This is known as a curative admission and is meant to remedy the prejudicial effect caused by the previously admitted evidence.

Question 87

When are statements in a learned treatise, periodical, or pamphlet excepted from hearsay, and when can they be read into evidence?

Answer 87

Statements in a learned treatise, periodical, or pamphlet are excepted from hearsay and can be read into evidence if (1) the statements are called to the attention of or relied on by an expert witness during examination and (2) the publication is established as a reliable authority by a party's expert or judicial notice.

Question 88

What is secondary evidence, and who determines whether secondary evidence can be admitted?

Answer 88

A party may use other, secondary evidence (e.g., testimony) to prove a document's content if certain factual conditions are established (e.g., all originals are lost or destroyed). Whether a party has fulfilled the factual conditions for admitting secondary evidence is a determination for the court.

Question 89

Who determines issues about whether an asserted document ever existed, another document produced at a hearing or trial is the original, or other evidence of content accurately reflects the content?

Answer 89

The jury

Question 90

Does the former testimony exception apply to grand jury testimony?

Answer 90

The former testimony exception rarely applies to grand jury testimony because (1) a suspect/defendant is seldom present at grand jury proceedings and (2) the prosecution's motive to develop a witness's testimony is often lacking.

Question 91

Must an item used to refresh a witness's memory have been written or adopted by that witness?

Answer 91

No, unlike a recorded recollection-- they can view any item, even if its not admissible for substantive purposes.

Question 92

Is the physician-patient privilege recognized under federal law?

Answer 92

No

Question 93

When an out-of-court statement is admitted under a hearsay exception, can the declarant be impeached?

Answer 93

Yes, as if they had testified at trial-- e.g., with a bad act that is probative of the declarant's character for untruthfulness.

Question 94

What specific instances of conduct are allowed for impeaching a witness that are probative of the witness's character for untruthfulness?

Answer 94

1) Convictions of a felony or crime of dishonesty (can be introduced extrinsically) 2) Other bad acts (can only be introduced intrinsically-- by questioning witness)

Question 95

Can a recording be admissible as a present sense impression, if made in the moment?

Answer 95

Yes

Question 96

Can the court develop or clarify testimony of witnesses?

Answer 96

Yes, either by: calling a witness sua sponte or at the suggestion of a party, and/or examining a witness, regardless of who called the witness. However, the court abuses this authority when it fails to grant all of the parties an opportunity to examine the witness or assumes the role of an advocate.

Question 97

What's the general rule for admissibility? (Starting sentence for an essay).

Answer 97

As a rule, evidence must be relevant to be admissible, and all relevant evidence is admissible unless excluded by a specific rule, law, or constitutional provision.

Question 98

Is a statement made primarily to enable police to render aid to meet an ongoing emergency testimonial?

Answer 98

No

Question 99

Are statements made for the purposes of medical diagnosis or treatment admissible?

Answer 99

Yes, as a hearsay exception-- statements describing a declarant's medical history or past or present symptoms, or even the cause of an injury, if pertinent to treatment or diagnosis. Need not be made directly to the doctor, or even necessarily made by the patient.

Question 100

Is the admission of a party opponent hearsay?

Answer 100

No, if the statement that is being introduced against a party is the party's own prior statement (or adoptive admission / vicarious admission / statement by co-conspirator)

Question 101

What is a vicarious admission?

Answer 101

Either 1) statements made by persons authorized to speak on a party's behalf (e.g., PR reps, lawyers) or 2) statements made by agents or employees if made within the scope of employment

Question 102

Can the court base a finding of whether there was a conspiracy or an agency relationship solely on the contents of the statement itself?

Answer 102

No, pure boot-strapping is not permitted-- there must be some other evidence to support the finding

Question 103

When does a crime involve dishonesty or false statements?

Answer 103

A crime involves dishonesty or false statement if establishing the elements of the crime requires proof or admission of an act of dishonesty or false statement.