Evidence

Question 1

Fifth Amendment Privilege Against Self-Incrimination

Answer 1

Allows any witness in civil & criminal proceedings to refuse to give potentially incriminating testimony.

Civil Case: opposing party may ask jury to draw adverse inference from witness’s claim of privilege. Ex) destruction of relevant evidence

Criminal Case: prosecution CANNOT comment on defendant’s failure to take stand & CANNOT ask jury to draw adverse inference from defendant’s claim of privilege.

Question 2

Matters affecting the witness’s credibility

Answer 2

Specific instances of conduct probative of the witness’s truthfulness may be used

Question 3

Attacking Witness’s Credibility

Answer 3

Evidence that a witness’s senses were impaired/affected by a physical or mental condition or by environmental factors at the time in question can be used to attack witness’s credibility.

Question 4

Cross Examination Requirements

Answer 4

Generally limited to the scope of direct examination and matters impacting the witness’s credibility. But a court has broad discretion to allow questions that go beyond the scope of direct examination.

Question 5

Adverse Party has the right to request

Answer 5

Rule of Completeness & Limiting Instructions

Question 6

Lay Witness

Answer 6

Lay witness can generally testify to any relevant matter based on the his/her personal knowledge or a common-sense impression that is rationally based on personal knowledge

Question 7

Witness Testifying

Answer 7

A witness can testify to any relevant matter of which the witness has personal knowledge— even if other evidence could be used to establish the same facts or the witness lacks certainty in recalling those facts.

Question 8

Witness’s character for truthfulness

Answer 8

Specific instances of conduct involving a conviction for a felony or crime of dishonesty OR other bad acts can be admitted to impeach a witness’s character for truthfulness.

HOWEVER, an ARREST is inadmissible because it was not a conviction.

BUT a witness can be asked about the underlying conduct that to the arrest.

Question 9

Witness (non expert)

Answer 9

It is presumed that a witness of any age is competent to testify so long as that testimony is 1) based on the witness’s personal knowledge and 2) supported by an oath or affirmation to testify truthfully.

Question 10

Expert Testimony

Answer 10

A court must determine whether a witness is qualified to testify as an expert. The opposing party may inquire into matters that might affect the weight of the expert witness’s testimony.

Question 11

Criminal Defendant & Character Evidence

Answer 11

A criminal defendant may call a character witness to testify about a character trait that is pertinent to the crime charge. If the defendant does so, the prosecution can recur that evidence by introducing:
1) reputation or opinion testimony from ANY WITNESS

OR

2) specific instances of conduct while cross-examining the defendant’s witness

Question 12

Test for Relevant Evidence

Answer 12

Evidence that addresses a central issue in the case is relevant and admissible unless excluded by other laws or rules. Ex) alternate explanation of the accident’s cause.

Question 13

Qualified Expert Testimony

Answer 13

Is admissible if it 1) will help the jury understand the evidence OR determine a fact in issue and 2) reliable

Question 14

Doctrine of Curative Admissibility

Answer 14

Allows otherwise inadmissible evidence to be admitted to rebut prejudicial evidence when 1) the evidence was improperly admitted through no fault of the prejudiced party, 2) that party objected to and moved to strike the evidence, and 3) an instruction to disregard cannot remedy the prejudice.

Question 15

Prior Inconsistent Statement

Answer 15

Can be used to impeach a witness, but IT CANNOT be used as substantive evidence unless it is excepted or excluded from the rule against hearsay

Question 16

Statement in Learned Treatises

Answer 16

Expert testimony that a treatise is a reliable authority lays a foundation for admitting the statements inside. The statements can then be used a basis for the expert’s opinion and as substantive evidence to help prove a material fact.

Question 17

The Confrontation Clause

Answer 17

Limits the admissibility of testimonial evidence made against the criminal defendant. Such evidence is inadmissible unless the declarant is unavailable as a witness and 2) defendant had a prior opportunity to cross-examine the declarant.

Non-testimonial can be admitted over the defendant’s objection