Evidence

Question 1

When do FRE not apply in?

Answer 1

Preliminary fact determinations by the judge
Grand jury proceedings
Other misc. proceedings (sentencing, extradition, bail. probation, issuing arrest/warrant)

Question 2

Relevance

What is relevant evidence?

Answer 2

Evidence that has any tendency to make the existence of any fact of consequence to the determination of the action more or less probable than it would be without the evidence

Material + probative

Question 3

Relevance

Is irrelevant evidence admissible?

Answer 3

Never

Question 4

Relevance

Is relevant admissible?

Exceptions?

Answer 4

Yes unless…

Excluded by FRE
OR
R 403 discretion to exclude

Question 5

Relevance

What is R 403?

Answer 5

Trial judge has broad discretion to exclude relevant evidence if its probative value is substantially outweighed by:
* unfair prejudice (often something w/ emotional outrage)
* confusion of issues
* misleading jury
* undue delay
* waste of time
* cumulative

Question 6

Relevance

Can prior similar occurrences be admitted?

Answer 6

General rule: no (b/c would not survive R 403 balancing - danger of confusion of issues, lower probative value, etc.)
Exceptions…

Question 7

Relevance

When can prior similar occurrences be admitted?

Answer 7

1. To prove cause of P’s damages –> P’s accident history of same bodily injury (otherwise would just show P is accident-prone)
2. To show P has history of prior false claims (again, to prove causation)
3. Similar accidents or injuries caused by the same event or condition occurring under substantially similar circumstances to prove:
   * existence of dangerous condition
   * that the dangerous condition was the cause of present injury
   * that D had notice (other accidents occurred before P’s accidence)
   Evidence of absence of complaints admissible to show D’s lack of knowledge (but not absence of negligence)
4. To prove intent/motive for current case
5. To prove property’s value w/ evidence of sales of similar/comparable personal or real property around same time period
6. To rebut claim of impossibility
7. To show causation
8. To show habit or business routine evidence
9. To show industry custom as evidence of standard of care (evidence but not conclusive)

Question 8

What should you think about automatically when seeing evidence?

Answer 8

1. Is this evidence relevant?
2. If it is relevant, would it be character evidence that it would likely be excluded?
   * If it is character evidence, esp. if it’s a prior similar occurence or act, can it come in through a non-character purpose or through an exception?
3. If it is not character evidence, it is hearsay?
   * If it is hearsay, can it come through an exception?
4. If it is not either, is it physical evidence?
   * Has it been authenticated and does it conform to the Best Evidence Rule?
   –>
5. Still, could the evidence be excluded under R 403?

Question 9

Relevance

What is habit evidence?

Answer 9

Evidence of a person’s habit or an organization’s routine practice - a regular/repetitive response to a particular set of circumstances

Cf. Character evidence - geenral disposition or propensity to do something

Habit evidence is admissible as circumstantial evidence that person/organization acted in accordance w/ habit on occasion

Question 10

Relevance

What are the 5 public policy exclusions to relevant evidence?

Answer 10

1. Liability insurance
2. Subsequent remedial measures
3. Civil settlements + settlement negotiations
4. Plea discussions
5. Payments of and offers to pay medical expenses

Question 11

Relevance

What is the public policy exclusion re liability insurance?

Answer 11

Evidence of insurance or lack thereof is inadmissible to prove negligence/wrongful conduct.

Admissible ONLY to:
* prove ownership or control, if disputed
* to impeach witness (i.e., via bias)
* as a part of admission of liability (i.e., “don’t worry, my insurance will pay it off”)

Question 12

Relevance

What is the public policy exclusion re subsequent remedial measures?

Answer 12

Evidence of repairs or other precautionary measures made following injury are inadmissible to prove negligence, culpable conduct, defect, or need for warning or instruction

Admissible ONLY:
* to prove ownership or control, if disputed
* to rebut a claim that a precaution was not a feasible option, if made
* to prove that the opposing party has destroyed evidence

Question 13

Relevance

What is the public policy exclusion re civil settlements and negotiations?

Answer 13

Settlements, offers, and conduct or statements made during negotiations are not admissible to:
* prove validity or amount of claim
* impeach by prior inconsistent statement or contradiction

Admissible ONLY to:
* impeach for bias
* conduct or statements in civil negotations w/ gov’t regulatory authority in a criminal case

just offers (i.e., I’ll settle w/ you for $100k if you don’t sue) w/o negotiation = NOT valid b/c it doesn’t go to prove validity or amount of the claim (so offer would be admitted)

Question 14

Relevance

What is the public policy exclusion re plea discussions?

Answer 14

Generally admissible in any criminal or civil caes against D who made the plea or participated in plea discussions:
* offers to plead guilty
* withdrawn guilty pleas
* no-contest pleas
* statements in plea discussions

Guilty pleas NOT withdrawn = admissible (as statement of opposing party)

Question 15

Relevance

What is the public policy exclusion for payments/offers to pay medical expenses?

Answer 15

Inadmissible to prove liability but any accompanying admission of facts themselves are admissible to prove liability

Question 16

Character

What is character evidence?

Answer 16

Evidence that refers to a person’s general propensity/disposition

Question 17

Character

What are the valid purposes of character evidence?

Answer 17

1. To prove person’s character where that character is directly in issue - an essential element of a crime (not just a material element)
2. To serve as circumstantial activity to prove how the person probably acted (conducted in conformity w/ character - propensity evidence) - but permitted only in a few situations
3. To impeach the witness

Question 18

Character

How is character evidence presented?

Answer 18

1. Evidence of person’s specific acts
2. Opinion testimony
3. Reputation testimony

Question 19

Character

How can character evidence be introduced in a criminal case against D?
For reputation/opinion testimony?
For specific bad acts?

Answer 19

Reputation/Opinion Testimony:
1. D can provide pertinent trait to show he is innocent via reputation or opinion testimony. (not of specific acts)
2. Prosecution then THEN rebut w/ evidence of D’s bad character traits
* on cross - “have you heard?” or “did you know?”
* via its own character witness to show D’s character witness’s lack of knowledge or show reputation/opinion testiony
* Prosecution CANNOT bring in extrinsic evidence to prove events actually occurred

Specific Bad Acts:
Prosecution can only offer this evidence to show MIMIC (motive, opportunity, intent, preparation, mans, knowledge, mistake/absence of mistake, identity, common scheme)

Question 20

Character

Can the prosecution ever introduce evidence of D’s bad character to show conformity with his character in this caes?

Answer 20

NEVER in its case-in-chief
(unless being offered to prove some other purpose - i.e., MIMIC)

Question 21

Character

How can character evidence be introudced in a criminal case against a victim?

Answer 21

1. D may introduce reputation/opinion testimony concerning victim’s character for relevant trait when relevant to show D’s innocence - except in sexual assault cases
2. Prosecution may THEN rebut w/ reputation/opinion testimony showing:
   * Victim’s good character for same treat OR
   * D’s bad character for same trait

Question 22

Character

What is the special rule for introducing evidence in homicide cases?

Answer 22

Prosecution can offer character evidence first (of victim’s pertinent trait) if D claims or offers any evidence of self-defense.

Otherwise, in any other criminal case, prosecution can only bring in this character evidence if D opens the door first (i.e., shows victim’s bad trait

Question 23

Character

For rape victims, are the victim’s past behavior admissible?
Exceptions?

Answer 23

No, generally inadmissible
Exceptions:
* in criminal cases –> specific instances of victim’s past sexual behavior to prove different source of injury or physical evidence or to show consent between victim and D
* in civil cases –> evidence of alleged victim’s sexual behavior when probative value substantially outweighs unfair prejudice and the evidence of the alleged victim’s reputation is admissible ONLY if placed in controversy by the victim

Question 24

Character

What is the rule for character evidence in civil cases?

Answer 24

Generally inadmissible
Exceptions…

Question 25

# Character What are the exceptions for permitting character evidence in civil cases? (which can also be used in criminal cases too)

Answer 25

1. when character is directly at issue (essential element to the claim or defense) --> admits opinion, reputation, and specific acts * defamation, libel * negligent hiring or entrustment case (of hired person's character) * child custody cases 2. to prove an independently relevant purpose (MIMIC) * **Note: there must be sufficient evidence to support jury finding that D committed prior misconduct** * subject to R 403 balancing * Notice requirement in criminal cases: prosecution must provide reasonable notice of any evidence of this type that prosecutor intends to offer at trial 3. D's similar misconduct in sex crime cases (sexual assault or child molestation) * Notice requirement: party intending to offer evidence must disclose it to D 15 days before trial

Question 26

# Authentication, Writings, and Real Evidence Must writings be authenticated?

Answer 26

Yes, by proof that shows that writing is what proponent claims it is to be | Proof = sufficient to support jury finding of genuineness

Question 27

# Authentication, Writings, and Real Evidence What is the authentication rule for ancient documents?

Answer 27

1. Document must be at least 20 years old 2. in nonsuspicious conditions (as to its authenticity - no tampering) AND 3. found in a place where suhc a writing owuld likely be kept ## Footnote Note - writing may be authenticated but could still be excluded by hearsay To come in under hearsay exception for ancient documents, writing must have been prepared before 1998

Question 28

# Authentication, Writings, and Real Evidence What is the reply letter doctrine for authentication purposes?

Answer 28

the document can be authenticated by evidence it was written in response to communication sent to the alleged author (e.g., P receives acceptance of a contract purportedly signed by X after P sent the offer to X)

Question 29

# Authentication, Writings, and Real Evidence How are photographs and videos authenticated?

Answer 29

By laying a proper foundation: * identified by a witness as a portrayal of certain facts relevant to the issue AND * verified by the witness as a fair + accurate representation of facts depicted ## Footnote Photographer does NOT have to testify - just a witness familiar w/ scene/object is sufficient

Question 30

# Authentication, Writings, and Real Evidence How are X-ray pictures, electrocardiograms, and others authenticated?

Answer 30

Laying a proper foundation: showing that... * the process used is accurate * machine was in working order * operator was qualified to operate it * there is a custodial chain to show that X-ray was not tampered with

Question 31

# Authentication, Writings, and Real Evidence When an oral statement is admissible, how is identity authenticated?

Answer 31

* through voice - which can be identified by any person who has heard the voice at any time (even after proceedings have begun) * through telephone conversations - statements from phone conversations can be authenticated by : 1. party to call recognized speakers's voice 2. speaker had knowledge of certain facts 3. speaker answered phone and identified themselves 4. speaker who answered business's phone talked about business matters

Question 32

# Authentication, Writings, and Real Evidence What are self-authenticating documents? Examples?

Answer 32

Writings that are said to authenticate themselves domestic public documents w/ seal + similar foreign official docs official publications certified copies of public reocrds or private files on record at public office newspapers + periodicals trade inscriptions + labels acknowledged (notarized) documents commercial papers business records and electronically generated records w/ certification + notice

Question 33

# Authentication, Writings, and Real Evidence What is the Best Evidence Rule?

Answer 33

To prove the content of a writing, recording, or photograph (including any tangible collection of data), the original writing or duplicate (minus exceptions) must be produced To prove the content of a writing means: 1. when writing is a legally operative or dispositive instrument (the writing itself creates rights & obligations) 2. where the knowledge of a witness concerning a fact results from having read it in a writing or seen it in a photograph/video | NOT needed for relaying personal knowledge/facts ## Footnote Original: writing itself, or any ocunterpart, intended to have same effect (includes photographs and printouts) Duplicate: exact copy made by mechanical means (photocopy or carbon copy) Exceptions to preclude duplicates: * circumstances make it unfair to admit the duplicate * there is a genuine issue raised as to the authenticity of hte original

Question 34

# Authentication, Writings, and Real Evidence When can secondary evidence be permitted?

Answer 34

ONLy if proponent has good excuse for not producing the original (per the best evidence rule) * original has been lost or destroyed (unless proponent destroyed it in bad faith) * original cannot be botained * original in possession of adversary who fails to produce it

Question 35

# Authentication, Writings, and Real Evidence Exceptions to the best evidence rule?

Answer 35

1. Summaries of voluminous records sufficient 2. Certified public records 3. collateral writings (i.e., those of minor import to matter) 4. testimony or written admission of opponent (where opponent has given testimony, deposition, or written admission about writing's contents)

Question 36

# Authentication, Writings, and Real Evidence In making determinations of fact regarding admissibility of duplicates, what facts are preserved for the jury?

Answer 36

whether the original ever existed whether the writing produced at trial is an original whether evidence offered correctly reflects contents of original

Question 37

# Authentication, Writings, and Real Evidence How would you authenticate real evidence?

Answer 37

via testimony of witness that they recognize the object as what the proponent claims it to be OR evidence that object has been held in a substantially unbroken **chain of possession** | Proof must be sufficient to support a jury finding of genuineness ## Footnote If the condition of the object is significant --> it must be shown that it is in substantially the same condition at trial as it was on the relevant occasion

Question 38

# Witnesses How do we know a witness is competent to testify?

Answer 38

1. There is evidence sufficient to support a finding that the witness has **personal knowledge** on the matter that witness will testify to AND 2. Oath or affirmation to testify truthfully (including for interpreter)

Question 39

# Witnesses What can there not be a disqualification on?

Answer 39

* lack of religious belief * conviction of a crime * interest in lawsuit * children (depending on capacity, intelligence) * insanity * judges + jurors

Question 40

# Witnesses What can a juror testify to in an inquiry into the validity of a verdict/indictment?

Answer 40

Juror CANNOT testify as to what occurred during dleiberations or about anythign that may have affected a juror's vote except... * Whether any extraneous prejudicial information was improperly brought to jury's attention * Whether any outside influence was improperly brought to bear on any juror * Whether there is a mistake on the verdict form * Whether any juror made a clear statement that they relied on racial stereotype or animus to convict a criminal D (racial animus MUST HAVE BEEN a **significant motivating factor** in juror's vote to convict

Question 41

# Witnesses What are Dead Man Acts?

Answer 41

A state statute that provides that in a civil case, an interested person (or predecessor in interest) is incompetent to testify against the decedent's estate or successors about any personal transaction or communication w/ the deceased NOT applicable in federal rules

Question 42

# Witnesses Are leading questions permissible?

Answer 42

Only on cross COULD be permissible on direct when... * witness needs help responding b/c loss of memory, immaturity, or physical/mental weakness * witness is hostile, an adverse party, or witness affiliated w/ adverse party

Question 43

# Witnesses What are improper questions to ask?

Answer 43

misleading questions compound questions argumentative conclusionary cumulative unduly harassing or embarassing call for narrative answer or speculation answers that lack foundation (insufficient personal knowledge) --> stricken answers that are nonresponsive --> stricken

Question 44

# Witnesses What is the refreshing present recollection use? (document for purpose of refreshing witness's present recollection)

Answer 44

Witness may use any writing or object for purpsoe of refreshing present recollection After memory restored --> set aside writing and testify on present recollection (not using terms or substance of writing/recording and not read into evidence) ## Footnote Safeguards against abuse while witness is on or before taking the stand: * adverse party can have writing produced, cross witness with it, and introduce portions into evidence In criminal case --> if prosecution fails to produce or deliver a writing as ordered, judge must strike witness's testimony and may declare mistrial In civil case --> judge has more discretion

Question 45

# Witnesses What is the recorded recollection use? (document for purpose of reading into evidence (or introducing as exhibit, depending if adverse party) the record when witness forgets

Answer 45

Where a witness states that they have insufficient recollection of a past event to enable present testimony even after consulting a record, the record can be **read into evidence** (not offered as an exhibit *unless adverse party*) upon laying the proper foundation: * witness has insufficient recollection to testify fully and accurately * witness had personal knowledge of facts in record when record was made * record was made by witness or under their direction or adopted by them * record was made when matters were fresh in witness's minds * record accurately reflects witness's knowledge ONLY an ADVERSE party may introduce the record into evidence.

Question 46

# Witnesses General rule for lay opinion testimony? Exceptions?

Answer 46

Generally inadmissible UNLESS * rationally based on witness's perception (personal knowledge) * is helpful to clear understanding of witness's testimony or determinative fact in issue * not based on specialized knowledge (including legal conclusions) ## Footnote Examples: general appearance or condition of a person state of emotion of a person matters involving sense recognition voice or handwriting identification speed of a moving object value of witness's own services or proeprty rational or irrational nature of another's conduct person's intoxication

Question 47

# Witnesses When is expert opinion testimony admissible?

Answer 47

Proponent demonstrates it is more likely than not that: 1. The scientific, technical, or other specialized knowledge will assist the trier of fact (be helpful); 2. is based on sufficient facts or data; 3. is based on reliable principles and methods; 4. testimony reflects a reliable application of priniciples and methods to the facts AND 5. witness is qualified by specialized knowledge, skill, experience, training, or education

Question 48

# Witnesses What does it mean for an expert testimony to be based on sufficient facts or data?

Answer 48

based on 3 possible sources: 1. expert's own personal observations 2. facts made known to the expert at trial 3. facts not known personally but supplied to the expert outside the courtroom and of a type reasonbaly relied upon by other experts in the particular field (e.g., interviews of friends for mental patients) ## Footnote facts don't need to be admissible themselves at trial if not admissible --> proponent must not disclose facts to jury unless court determines probative value substantially outweighs prejudicial effect (**reverse 403**)

Question 49

# Witnesses What does it mean for an expert testimony to be based on reliable principles and methods?

Answer 49

*Daubert* factors for reliability (TRAP): Testing of principle of methodology (is testable + has been tested) Rate of error (significant rate of error in method?) Acceptance by experts in same discipline Peer review and publication

Question 50

# Witnesses When can a learned treatise come in? (re expert testimonies)

Answer 50

To impeach experts or for hearsay purposes if: * treatise established as reliable authority by testimony of expert on stand or testimony of some other expert or judicial notice * treatise called to expert's attention on cross or relied upon by expert on direct | Can be read into evidence then (not offered as exhibit)

Question 51

# Witnesses When must an expert disclose the evidence underlying his expert opinion?

Answer 51

when probative value substantially outweighs unfair prejudice (**reverse 403**)

Question 52

# Witnesses Can an expert render an opinion as to the ultimate issue in the case? Exceptions?

Answer 52

Yes EXCEPT: * In criminal cases where D's mental state cnostitutes an element of crime or defense --> expert may NOT state opinion as to whether accused did or did not have mental state * if expert testifies w/ just legal jargon --> not helpful and inadmissible

Question 53

# Impeachment What is the main question for impeachment?

Answer 53

Does the jury believe what the witness says?

Question 54

# Impeachment What is impeachment?

Answer 54

Discrediting a witness | Does the jury believe what the witness says?

Question 55

# Impeachment Is bolstering a witness's testimony/credibility permitted?

Answer 55

NEVER before it has been attacked e.g., introducing statement consistent w/ prior statement before any attacks on credibility (except for anything related to identification) after attack = rehabilitation --> OK

Question 56

# Impeachment Who can impeach?

Answer 56

Any part

Question 57

# Impeachment How/when can a party impeach?

Answer 57

On cross OR via extrinsic evidence (other witnesses or documents)

Question 58

# Impeachment What are the 2 main methods for impeaching a witness?

Answer 58

1. Impeachment w/ facts specific to the current case 2. Impeachment by showing a general bad character for truthfulness

Question 59

# Impeachment What are the 4 methods for impeaching a witness w/ facts specific to the current case?

Answer 59

1. Prior inconsistent statements 2. Bias 3. Sensory deficiencies 4. Contradiction

Question 60

# Impeachment How can a party impeach using prior inconsistent statements?

Answer 60

via cross or extrinsic evidence that witness has, on another occasion, made statemetns inconsistent w/ present testimony On cross: just by asking Via extrinsic evidence: Must lay proper foundation --> * before introducing evidence, witness must have opprotunity to explain or deny the statement + adverse party has opportuni to examine the witness about it UNLESS * prior inconsistent statement is opposing party's statement * statement is by hearsay declarant and being used to impeach hearsay declarant * justice so requires

Question 61

# Impeachment When can a prior inconsistent statement come in as evidence for purposes of impeachment?

Answer 61

prior inconsistent statement was made under oath at a prior proceeding

Question 62

# Impeachment What would NOT be considered a prior inconsistent statement?

Answer 62

prior sttaement omits a fact asserted during current testimony witness's present lack of memory witness remembers fact on stand but didn't in prior statemetn

Question 63

# Impeachment How can a party impeach showing bias?

Answer 63

On cross Via extrinsic evidence upon proper foundation majority rule: before impeachment, witness must first be asked about the facts that show bias or interest on cross left to court's discretion

Question 64

# Impeachment How can a party impeach showing sensory deficiencies?

Answer 64

On cross Via extrinsic evidence - no foundation requirement (*witness does not need to be confronted w/ impeaching fact*)

Question 65

# Impeachment How can a party impeach through contradiction?

Answer 65

On cross: by tring to make the witness admit that they lied or were mistaken * If witness admits --> impeached * if witness continues lying --> extrinsic evidence CAN be admitted to prove contradictory fact UNLESS contradictory fact is collateral and has no significant relevance to case (**but remember - can't bring in extrinsic evidence upon lying for any specific bad acts (character traits)**)

Question 66

# Impeachment What are the 3 methods to impeach a witness using general bad character for truthfulness?

Answer 66

1. opinion or reputation evidence of truthfulness 2. prior convictions 3. bad acts only involving untruthfulness

Question 67

# Impeachment How can a party impeach via opinoin/reputation evidence of truthfulness?

Answer 67

Calling character witness to testify about target witness's bad reputation or low opinion of character for truthfulness (*but cannot use specific instances of conduct*)

Question 68

# Impeachment How can a party impeach via prior convictions?

Answer 68

Using: 1. any crime involving dishonesty or false statement (but not theft) 2. felony not involving dishonesty or false statement from within last 10 years - *which may be excluded at court's discretion* * if witness is criminal D --> court will weigh if probative value of conviction **outweighs** prejudicial effect * If any other witness --> court will exclude if probative value is **substantially outweighed** by prejudicial effect NOT using: * misdemeanors not involving dishonesty or false statement * conviction of 10+ years UNLESS probative value **substantially outweighs** prejudicial effect (**reverse 403**) + proponent gives adverse party reaosnable written notice of intent to use * juvenile offenses (except for select instances against witness, not criminal D) * conviction was obatined in violation of D's constitutional rights * conviction was pardoned Shown on direct, cross, or extrinsic evidence | Any questions on **bad acts** would not fall under htis convictions area

Question 69

# Impeachment How can a party impeach using bad acts involving unturthfulness?

Answer 69

ONLY on cross (no extrinsic evidence) must be probative of truthfulness (deceit or lying) even if did not result in conviction must be good faith basis that witness committed conduct CANNOT refer to any consequences from bad act (i.e., arrest, termination of employment, etc. - unless could be pertinent to bias) Cannot bring in extrinsic evidence if witness denies except cross-examiner can continue cross in hopes that witness will change his answer

Question 70

# Impeachment How can a party attack the credibility of a hearsay declarant?

Answer 70

by any of the impeachment methods

Question 71

# Impeachment When and how can you rehabilitate an impeached witness?

Answer 71

On redirect --> witness may explain/clarify Testimony from character witness --> that impeached target witness has good character for truthfulness via reputation or opinion testimony (not specific acts) By prior consistent statements * if witness has been attacked by express or implied charge that witness is lying b/c of some motive --> previous consistent statement made by witness BEFORE onset of alleged motive admissible to rebut * if witness's tesimony impeached on non-character ground (faulty memory, inconsistency, etc.) --> previous consistent statement made by witness if, under circumstances, it has tendency to rehabilitate witness's credibiltiy (*can simply be asked to re-state prior consistent statement*) | would be admissible as substantive evidence of truth of its contents