Evidence

Question 1

Relevance

Answer 1

evidence is relevant if it is material (of consequence) and probative (has any tendency to make a fact more or less probable)

Question 2

Rule 403 Exclusion of Relevant Evidence

Answer 2

Probative value substantially outweighed by the danger of one or more of the following:
unfair prejudice
confusion of the issues
misleading the jury
undue delay
waste of time
needless presentation of repetitive evidence

Question 3

Similar occurences

Answer 3

inadmissible unless one of the following:
1. plaintiffs prior false claims or same bodily injury
2. Similar acts or injuries caused by same event or condition if substantially similar circumstances to prove existence, cause, and notice of dangerous condition
3. Previous similar acts to prove intent/motive
4. sale of similar property
5. Rebutting claim of impossibility
6. causation
7. Habit - regular response to specific set of circumstances
8. industry custom as evidence of standard of care

Question 4

Liability insurance inadmissible to prove

Answer 4

whether a party acted negligently or wrongfully

Question 5

Liability insurance may be admissible to prove

Answer 5

ownership/control
Impeachment
as a prat of admission to liability

Question 6

Subsequent remedial measures inadmissible to prove

Answer 6

negligence, culpable conduct, a defect in the product or design or a need for warning or instruction

Question 7

Subsequent remedial measures admissible to prove

Answer 7

ownership/control
rebut a claim that a precaution was not feasibly
prove opposing party destroyed evidence

Question 8

Civil settlements and negotiations inadmissible to prove

Answer 8

prove or disprove the validity or amount of disputed claim impeach a witness by prior inconsistent statement or contradiction

Question 9

civil settlements and negotiations admissible to prove

Answer 9

impeachment on grounds of bias

Question 10

Plea discussions inadmissible to prove

Answer 10

offers to plead guilty, withdrawn guilty pleas, actual pleas of no contest statements of fact made during above discussions

Question 11

pleas discussions admissible to prove

Answer 11

actual guilty plea

Question 12

Payments and offers to pay medical expenses inadmissible to prove

Answer 12

to prove liability of injury

Question 13

Payments and offers to pay medical expenses admissible to prove

Answer 13

admissions of fact accompanying payment or offer

Question 14

Character evidence

Answer 14

a persons general propensity or disposition
May be offered as substantive evidence to :
1. prove a persons character when their character is directly in issue in the case OR
2. serve as circumstantial evidence of how a person probably acted during the events of the case
evidence of bad acts for truthfulness may be offered to impeach

Question 15

3 ways to prove character

Answer 15

specific acts
opinion
reputation

Question 16

How to prove defendants character in a criminal case (defendant)

Answer 16

Character witness who testifies to defendant’s good reputation for a pertinent trait and may give their personal opinion concerning the trait of defendant

Question 17

How to prove defendants character in a criminal case (Prosecution)

Answer 17

Once the defendant opens the door
cross examine character witness by asking have you hears or did you know questions about specific acts of defendant to show trait in question
Call its own character witness to provide reputation or opinion testimony

Question 18

How to prove a victims character in a criminal case (defendant)

Answer 18

Reputation or opinion evidence of bad character trait of victim to show defendant’s innocence

Question 19

How to prove a victims character in a criminal case (prosecutor)

Answer 19

Once defendant opens the door, prosecution can rebut with opinion/reputation evidence of victims good character for same trait or defendants bad character for same trait
Homicide cases where the defendant is proving self defense can show evidence of any kind that victim was first aggressor opens the door to evidence of victims character for peacefulness

Question 20

Character evidence in civil cases

Answer 20

generally not admissible unless persons character is an essnetial element of claim/defense then all forms admissible
(defamation, negligent hiring or entrustment, child custody cases)

Question 21

Other misconduct

Answer 21

evidence of previous crimes, wrongs, or acts generally inadmissible unless to prove MIMIC (motive, intent, absence of mistake, identity, and common scheme or plan)
Had to be sufficient evidence to support jury finding that defendant committed other misconduct and survive rule 403
Reasonable notice required
Evidence of previous acts of sex crime admissible w/ disclosure

Question 22

Authentication by opponents admission

Answer 22

Party against whom it is offered has admitted it authenticity or acted upon it as authentic

Question 23

Authentication by eyewitness testimony

Answer 23

testimony of anyone who saw it executed or heard it acknowledged

Question 24

Authentication by handwriting verifications

Answer 24

Through opinion of laywitness who is familiar with handwriting, expert who has compared writing to samples, or jury comparison

Question 25

Authentication by Ancient Documents

Answer 25

at least 20 years old, in a condition that creates no suspicion of authenticity and found in a place it would likely be kept (must be prepared prior to 1998 to pass hearsay)

Question 26

Authentication by reply letter doctrine

Answer 26

written in response to communication sent to alleged author

Question 27

Authentication of photos and videos

Answer 27

identification of witness as a portrayal of certain facts relevant to the issue and verified it is a true and accurate depiction of those facts

Question 28

Authentication of x-ray

Answer 28

process used is accurate, machine was in working order, operator qualified to use it and custodial chain

Question 29

Authentication of voice identification

Answer 29

opinion of anyone who heard voice at any time

Question 30

Authentication of telephone conversation

Answer 30

testimony that they recognize other party's voice, speaker had knowledge of certain facts only particular person would know, called particular number and voice answered as that person OR called a business and talked with the person answering the phone about relevant business matters

Question 31

Self authenticating documents

Answer 31

domestic documents with seal; official publications; certified copies of public or private records newspapers; trade labels/inscriptions; notarized documents; commercial paper; business records

Question 32

Best evidence rule

Answer 32

OG writing must be produced if the terms of the writing are material Applies when 1. writing is legal operative or dispositive instrument OR 2. the knowledge of a witness concerning a fact results from having read it in the writing Does not apply 1. when the witness has personal knowledge of the fact to be proved even if it is also in the writing Secondary evidence works if loss or destruction of OG, cant be obtained by judicial process, or in possession of adversary who fails to produce

Question 33

Past recollection recorded

Answer 33

can read into evidence a record if: 1. witness has insufficient recollection to testify fully and accurately 2. witness had personal knowledge of facts in the record when the record was made 3. record made by witness or under their direction or it was adopted by witness 4. record was made when matter was fresh in witnesses mind AND 5. witness can vouch for its accurate at time made or adopted

Question 34

Lay witness opinion testimony

Answer 34

can testify when rationally based on witness's perception, if helpful, not based on science, technical or specialized knowledge; cant give testimony as to whether they acted as agent or K was made

Question 35

Expert opinion testimony

Answer 35

Admissible if subject matter is one where science, technical, or specialized knowledge would help jury, opinion is based on sufficient facts or data, opinion is product or reliable principles and methods, and opinion reflects reliable application or principles and methods to facts of case

Question 36

2 methods for impeachment

Answer 36

cross examination extrinsic evidence

Question 37

Ways to impeach with facts specific to current case

Answer 37

Prior inconsistent statements bias or interest sensory deficiencies Contradictory facts

Question 38

Prior inconsistent statement

Answer 38

party can show via cross or extrinsic evidence that the witness has on another occasion made statements inconsistent with their present testimony If the statement was made under oath it is admissible as non-hearsay substantive evidence To prove by extrinsic evidence MUST lay proper foundation before evidence introduced: 1. witness must have opportunity to explain or deny statement AND 2. Adverse party is given opportunity to examine the witness about the statement

Question 39

Bias or Interest impeachment foundation

Answer 39

Before being impeached by extrinsic evidence, must first be asked about facts that show bias or interest on cross

Question 40

Sensory deficiencies

Answer 40

impeached by showing that their faculties of perception and recollection were so impaired they couldn't hav perceived those facts No foundation requirement w/ extrinsic evidence

Question 41

Contradictory Facts

Answer 41

make witness admit they lied or were mistaken about a fact they testified to on direct; if they stock their story extrinsic evidence allowed if fact is not collateral

Question 42

Impeachment for general bad character or truthfulness

Answer 42

Opinion or reputation evidence by character witness Conviction of a crime if 1. Crime required an act of dishonesty or false statement 2. felony 3. if less than 10 years from date of convitcion or release Bad acts involving untruthfulness only w/ cross

Question 43

Non-Hearsay exclusions

Answer 43

Prior statements of testifying witnesses Statements by or attributable to opposing party

Question 44

Prior statements of testifying witnesses

Answer 44

if testifying witness is subject to cross-examination, not hearsay if: 1. prior statement is one of identification of a person as someone the witness perceived earlier 2. Prior statement is inconsistent and was given under oath in prior proceeding OR 3. prior statement is consistent with declarants in court testimony and is to rebut a charge that witness is lying or offered to rehabilitate

Question 45

Hearsay exceptions

Answer 45

Former testimony Statements against interest Dying declaration Statements offered against party procuring declarants unavailability Statements of personal or family history Excited utterances Present sense impressions Present state of mind Statements made for purposes of medical diagnosis or treatment Business records Official records Recorded recollection Ancient documents Reputation Family Records Market Reports

Question 46

Declarant is unavailable when

Answer 46

death or physical or mental illness privilege refuse to testify not remember absent

Question 47

Former testimony

Answer 47

Testimony of a non-unavailable witness is admissible if testimony was given under oath and party against whom the testimony is now being offered had an opportunity or similar motive to develop declarants testimony at the prior proceeding

Question 48

Statement against interest

Answer 48

Statement against a persons pecuniary, penal, or proprietary interest when made is admissible

Question 49

Dying Declaration

Answer 49

ONLY for homicide case or civil case statement made by now-unavailable declarant is admissible if declarant believed their death was imminent and the statement concerned the cause or circumstances of what the declarant believed to be their impeding death

Question 50

Excited Utterances

Answer 50

out of court statement relating to a startling event made while under the stress of the excitement from the event is admissible

Question 51

Present Sense Impressions

Answer 51

Present sense impression is a statement that describes or explains an event or condition and is made while immediately after the declarant perceives the event or condition

Question 52

Present state of mind

Answer 52

A statement of the declarants then existing (present) state of mind or their emotional, sensory or physical condition is admissible Includes statements of intent and physical condition

Question 53

Statements made for purposes of medical diagnosis or treatment

Answer 53

a statement that describes a person's medical history, past or present symptoms, or their inception or general cause is admissible if made for medical diagnosis or treatment

Question 54

Business Records

Answer 54

Entry made in regular course of business, near time of event, must consist of matters within the personal knowledge of the entrant or someone with a duty to transmit such matters

Question 55

Confrontation Clause

Answer 55

hearsay statement will not be admitted where: 1. statement is being offered against the accused in a criminal case 2. the declarant is unavailable 3. the statement was testimonial in nature and 4. the accused had no opportunity to cross-examine the declarant's testimonial statement prior to trial

Question 56

Attorney client privilege

Answer 56

confidential communications between attorney and client made during professional legal consultation unless the privilege is waived or an exception is applicable

Question 57

Exceptions to attorney client privilege

Answer 57

attorneys services were sought to aid in the planning or commission of a crime or fraud Where client has put legal services at issue For communication relevant to an issue of breach of a duty in a dispute between attorney and client regarding a communication relevant to an issue between parties claiming through the same deceased client

Question 58

Physician-Patient Privilege

Answer 58

State privilege only and belongs to patient confidential information acquired by physician is privileges if: 1. there was professional relationship between the physician and patient for the purposes of medical treatment; 2. the information was acquired for the purpose of diagnosis or treatment; and 3. the information was necessary for diagnosis or treatment

Question 59

Physician-patient privilege does not apply when

Answer 59

Patient puts their physical condition in issue The physician's assistance was sought to aid wrongdoing Communication is relevant to an issue of breach of duty in a dispute between the physician and patient Th patient agreed by contract to waive the privilege OR it is a federal case applying the federal law of privilege

Question 60

Spousal Immunity

Answer 60

Criminal cases only a married person who's spouse is a defendant in a criminal case may not be called as a witness by the prosecution and may not be compelled to testify against the legal interest of their spouse in any criminal proceeding Only last during the marriage Privilege belongs to witness spouse

Question 61

Marital Communications

Answer 61

In any criminal or civil case Confidential communications between spouses during a valid marriage are privileged Either spouse can refuse to disclose Divorce will not terminate the privilege but communications after divorce are not privileged

Question 62

Marriage privileges do not apply

Answer 62

Communications or acts in furtherance of a future or joint crime or fraud In legal actions between spouses OR In cases where a spouse is charged with a crime against the testifying spouse or either spouse's children