EVIDENCE

Question 1

Hearsay

Answer 1

Hearsay is an out-of-court statement offered for the truth of the matter asserted.

Question 2

Non-hearsay to prove something was said (examples).

Answer 2

Verbal act or legally operative words (e.g., defamation, words that show contract formation, etc.);

State of mind (e.g., “I’m the Queen of England” to show declarant is crazy);

Effect on listener or reader (Tip: this is usually offered to prove motive or intent.)

Question 3

Non-hearsay

Answer 3

Prior statements of a trial witness:
1) Prior statement of identification;

2) Prior inconsistent statement (made under oath at a formal trial, hearing, or deposition and the declarant is at trial subject to cross-examination concerning the statement);

3) Prior consistent statement used to rebut a charge of recent fabrication of improper motive/influence.S

Question 4

Statement of a Party-Opponent

Answer 4

Considered non-hearsay:

1) Any statement made by the opposing party that is offered against that party;

2) Adoptive admissions (statements a person adopts through silence) The person have heard and understood the statement that a reasonable person would have objected to;

3) Agent/employee statements made by the agent/employee offered against the principal during the existence of the relationship and concerning a matter within the scope of the agency/employment;

4) Statements by co-conspirators made during the course of and in furtherance of the conspiracy.

Question 5

Hearsay Exceptions (Declarant Unavailable)

Answer 5

1. Forfeiture by wrongdoing (witness tampering): a party engages in wrongdoing for the purpose of making a witness unavailable for trial;
2. Former testimony: declarant is unavailable and had given testimony at a former proceeding or deposition, and it is admitted against a party or someone in privity who had the motive and opportunity to develop the statement;
3. Statement against interest: declarant is unavailable and made a statement he knew was against his interest at the time the statement was made;
4. Dying declaration: Declarant is unavailable, the statement was made while he believed death was impending, it concerns the cause or circumstances of death, and it is used in a homicide or civil case.
5. Statement of personal or family history (e.g., birthdate and marriage date)

Question 6

Confrontation Clause

Answer 6

In a criminal case, if the hearsay statement is testimonial, the declarant is unavailable, and the defendant had no opportunity to cross-examine the declarant, the statement will generally not be admitted (pursuant to the Sixth Amendment Confrontation Clause).

Question 7

Hearsay Exceptions (regardless of declarant availability)

Answer 7

1. Present sense impression: declarant describes or explains event as it is happening or immediately thereafter.
2. Excited utterance;
3. Then-existing mental, emotional, or physical condition;
4. Statement for medical treatment or diagnosis;
5. Recorded recollection;
6. Business records;
7. Public records;
8. Learned treatises (read into evidence if an expert is on the stand);
9. “Catchall” exception (for trustworthy statements)
10. Others (reputation about character, familial relations, etc.)

Question 8

Present sense impression:

Answer 8

declarant describes or explains event as it is happening or immediately thereafter.

Question 8

Excited utterance

Answer 8

there is a startling event, the declarant makes a statement while under the stress of excitement, and the statement relates to the event.

Question 9

Business records

Answer 9

A record made in the regular course of business at or about the time the event occurred that contains information observed by employees of the business (or an independent hearsay exception exists).

Question 9

Then-existing mental, emotional, or physical condition:

Answer 9

declarant states his then-existing feelings, physical conditions, or intent.

Question 10

Statement for medical treatment or diagnosis

Answer 10

declarant makes a statement about past or present symptoms or the cause(s) to get diagnosed or treated.

Question 10

Recorded recollection:

Answer 10

a witness has insufficient recollection of the event, but he had personal knowledge of the event at a former time, made or adopted a statement while the event was fresh in his memory, and can vouch for the accuracy of the statement when made or adopted.

Question 11

Public records

Answer 11

Made by an agency, but not police reports in criminal cases.

Question 12

Learned treatises

Answer 12

Read into evidence if an expert is on the stand)

Question 13

Refreshing Recollection

Answer 13

If a witness’s memory fails him, he may be shown a document or record to jog his memory.

Question 14

Competency of a Witness

Answer 14

Every witness is generally presumed to be competent regardless of religious beliefs, bias, etc.

Question 15

Judicial Notice

Answer 15

The court may judicially notice a fact that is not subject to reasonable dispute because it is generally known within the jurisdiction or it can be accurately and readily determined from sources whose accuracy cannot be questioned.

Question 16

Role of the Judge

Answer 16

The judge decides if evidence is admissible.

Question 17

Role of the Jury

Answer 17

The jury decides issues of authentication and credibility.

Question 18

Presumptions

Answer 18

A “presumption” means that a certain fact is assumed to be true unless the other side provides evidence to the contrary. In a civil case, a presumption can shift the burden of proof to the party against whom the presumption is directed. But the burden of persuasion is not affected and it remains on the party who had it originally.

Question 19

Scope of Cross-Examination

Answer 19

(i.e., the questioning of a witness by an opponent) should only cover matters within the scope of direct examination and matters affecting credibility.

Question 20

Leading Questions

Answer 20

(i.e., those that suggest an answer, like “isn’t it true that…”) are permitted on cross-examination. They are only allowed on direct examination (a) to develop preliminary matters (e.g., name and address), (b) for young or forgetful witnesses, or (c) for hostile witnesses or the adverse party. The court exercises reasonable control over the mode and order of questioning witnesses.

Question 21

Relevance

Answer 21

Evidence is relevant if it is more or less likely to be probative of the existence of a fact and it material to the case.

Question 22

Exclusion of relevant evidence.

Answer 22

Relevant evidence is admissible but may be excluded if the probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. Real, demonstrative, and experimental evidence are permissible in the judge’s discretion.

Question 23

Best-Evidence Rule

Answer 23

One only needs to present documentary evidence when one wants to prove the contents of a writing. This means that the writing is (1) a legally operative document (e.g., a will, contract, etc.), or (2) the witness learned about the event solely from the writing or record and has no independent knowledge of the event. An original writing, recording, or photograph is generally required, but a duplicate is admissible to the same extent as an original unless it is unfair to admit it or there is a genuine question about authenticity. Tip: this is often the wrong answer choice on the MBE.

Question 24

Rule on Completeness

Answer 24

When a party introduces part of a writing or transaction, the other party can ask that the rest of it be introduced as well if, in fairness, the rest ought to be considered contemporaneously with it. By introducing the writing or transaction, the party initially offering the evidence has waived any objections based on hearsay, competency, etc.

Question 25

Impeachment through prior inconsistent statements. Is extrinsic evidence permitted?

Answer 25

If a party makes a prior statement that is inconsistent with her testimony at trial, it may be used for impeachment. Tip: it may also be used as “substantive evidence” (i.e., the truth of the matter asserted) if it falls within a hearsay exception or exclusion (e.g., prior inconsistent statement or an opposing party’s statement). Extrinsic evidence may be used only if the witness is given an opportunity to explain or deny the statement at some point. This does not apply if the witness is the opposing party, not in court at all, or if the interests of justice require.

Question 26

Impeachment with bias Is extrinsic evidence permitted?

Answer 26

If a witness is a family member, friend, enemy of a party, paid by the party, granted immunity, or if other circumstances show bias, then that can be used to suggest the witness has motive to lie. Extrinsic evidence may be used only if the witness is asked about the facts that suggest bias and the witness denies those facts.

Question 27

Impeachment with prior convictions Is extrinsic evidence permitted?

Answer 27

There are two categories of convictions that are allowed into evidence under the federal rules: (1) felony or misdemeanor convictions where the prosecution is required to prove an act of dishonesty or false statement as part of the crime—these are automatically admitted, and (2) felony convictions that meet a balancing test that weighs the probative value and prejudice. Extrinsic evidence (the conviction) is permitted. Note: if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later, evidence of the conviction is generally not admissible.

Question 28

Impeachment with prior bad acts Is extrinsic evidence permitted?

Answer 28

If a witness engaged in a “bad act” that is probative of truthfulness (e.g., lying and cheating) he may be questioned about it on the stand. Extrinsic evidence is NOT permitted! If the witness denies the misconduct, evidence is not admissible to prove that it occurred.

Question 29

Impeachment through sensory deficiencies Is extrinsic evidence permitted?

Answer 29

Anything that concerns the witness’s perception or memory (e.g., if the witness is deaf, blind, has a bad memory, etc.) can be used to suggest the witness is mistaken. Extrinsic evidence is permitted.

Question 30

Impeachment by contradiction Is extrinsic evidence permitted?

Answer 30

A witness may be impeached during cross-examination if she made a mistake or lied about anything she said during direct examination. If the witness won’t admit her mistake, extrinsic evidence may be used as long as the fact at issue is not a collateral (irrelevant) fact.

Question 31

Impeachment by reputation or opinion for truthfulness. Is extrinsic evidence permitted?

Answer 31

A party may call its own character witness to testify that the witness in question has a bad reputation for truthfulness or, in the character witness’s opinion, that the witness is not truthful. Yes. The witness is the extrinsic evidence.

Question 32

Character Evidence

Answer 32

Character evidence is generally inadmissible to prove that someone acted in accordance with his character.

Question 33

Character evidence in a civil case.

Answer 33

Only admissible in cases where character is at issue. It can be proven by (ROS) reputation, opinion, and specific acts.

Question 34

Character evidence in criminal cases

Answer 34

The defendant must open the door and can use (RO) reputation or opinion evidence. The prosecution can use (ROS) reputation, opinion, and specific acts.

Question 35

Habit Evidence

Answer 35

Evidence of a person’s or organization’s habit or routine practice may be admitted to prove that it acted in accordance with the habit or routine practice.

Question 36

MIMIC exceptions to offering specific conduct

Answer 36

Specific instances of conduct may be admissible to prove (MIMIC): motive, intent, lack of mistake, identity, common scheme or plan. Tip: MIMIC can be used in criminal and civil cases.

Question 37

Self-defense and Character Evidence

Answer 37

A criminal defendant may offer evidence of the victim’s violent character using (RO) reputation or opinion evidence. The prosecution may rebut by introducing (RO) reputation or opinion evidence of the victim’s or defendant’s character.

Question 38

Evidence of prior sexual misconduct of the Defendant

Answer 38

If a defendant is accused of a sexual assault or child molestation, the court may admit evidence that the defendant committed any other sexual assault or child molestation. The evidence may be considered on any matter to which it’s relevant, including that he acted in accordance with his character. Tip: remember that only specific acts can be offered.

Question 39

Evidence of prior sexual misconduct of the Victim

Answer 39

In a criminal case, specific instances can be offered to prove the source of semen, injury, or other physical evidence; consent; or when excluding it would violate the defendant’s constitutional rights. In a civil case, evidence is not admissible unless the probative value substantially outweighs the danger of harm or unfair prejudice. The court may admit reputation evidence only if the victim places it in controversy.

Question 40

Qualification of an Expert

Answer 40

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify if it is helpful to the trier of fact and based on sufficient facts or data.

Question 41

What may an expert witness base their opinion on?

Answer 41

An expert may base an opinion on (1) personal knowledge, (2) facts that are in the record and made known to the expert by a hypothetical or testimony at trial, or (3) facts not in the record if they are the kind of facts other experts would reasonably rely on.

Question 42

Ultimate Issue Rule

Answer 42

An expert opinion may embrace an ultimate issue. But, in a criminal case, an expert witness must not state whether the defendant had the requisite mens rea.

Question 43

Lay Witness

Answer 43

A lay witness’s opinion is admissible if it is rationally based on the witness’s perception; helpful to determining a fact; and not based on scientific, technical, or other specialized knowledge. A lay witness must have personal knowledge.

Question 44

Rule on Witnesses

Answer 44

At a party’s request a court must order a nonparty witness to be excluded. However, a court cannot authorize excluding a party, a person whose presence is essential to the claim or defense, or someone authorized to be present.

Question 44

Authentication

Answer 44

The proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is. This can either be through witness testimony (where the witness has personal knowledge about the item and it is a fair and accurate representation thereof), or through an accurate chain of custody.

Question 45

Voice authentication

Answer 45

anyone can authenticate a voice—including a lay person—even if the person acquired familiarity with the voice solely for the purpose of litigation.

Question 46

Authenticating handwriting

Answer 46

To authenticate handwriting, one may use (1) a lay witness who was familiar with the handwriting before the litigation, (2) an expert witness, or (3) the trier of fact (e.g., the jury may compare the handwriting with an authenticated specimen).

Question 47

Authenticating photographs

Answer 47

Anyone who has personal knowledge of the scene in the photograph may authenticate it. Tip: the photographer is not necessary to authenticate a photograph!

Question 47

Spousal Immunity

Answer 47

(1) it applies in a criminal trial, (2) it is held by the witness spouse, and (3) the parties must be married at the time of trial.

Question 48

Confidential Marital Communication Privilege

Answer 48

(1) it applies in a civil or criminal trial, (2) it is held by both spouses, (3) the communication was confidential, and (4) it was made during the marriage.

Question 49

Attorney-Client Privilege

Answer 49

The privilege applies to confidential communications between an attorney and client (or either’s agent) or prospective client made for the purpose of obtaining legal advice.

Question 50

Therapist-Patient Privilege

Answer 50

Confidential communications between a patient and a doctor for the purpose of diagnosis or treatment are protected.

Question 51

Work Product Doctrine

Answer 51

Material prepared for litigation may not be discovered absent a showing of a “substantial need” and “undue hardship.”

Question 52

Is evidence of insurance coverage admissible?

Answer 52

Inadmissible to prove negligence but may be used for other purposes (e.g., to show agency, ownership, control, or bias).

Question 53

Are subsequent remedial measures admissible?

Answer 53

Inadmissible to show negligence or guilt but may be used for impeachment, to show ownership or control, or to show feasibility of precautionary measures if disputed.

Question 54

Are offers to settle admissible?

Answer 54

NO!

Question 55

Are offers to pay medical bills admissible?

Answer 55

Not to prove liability.

Question 56

Guilty Pleas admissibility?

Answer 56

Admissible. But, an offer to plead guilty, a guilty plea later withdrawn, a no contest plea, and statements made during negotiations that did not result in a guilty plea are inadmissible.