Evidence

Question 1

Relevance

Answer 1

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.

Evidence is relevant if:

(i) it has any tendency to make a fact more or less probable, and

(ii) the fact is of consequence in determining the action.

additionally, evidence will not be admitted id the probative value is substantially outweighed by the risk of prejudice, confusing the issues, or misleading the jury

Question 2

policy exclusions

Answer 2

• • subsequent remedial measures
• compromise offers
• settlement offers
• liability insurance
• offer to pay medical expenses
• rape shield law

Question 3

Subsequent remedial measures

policy exclusion

Answer 3

When a party takes remedial measures that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct.

Question 4

Compromise offers:

policy exclusion

Answer 4

made by any party are not admissible to prove the validity of a disputed claim, nor are they admissible for impeachment by prior inconsistent statement or contradiction.

Question 5

settlement offers

policy exclusion

Answer 5

ettlement offers or things said while in negotiation are not admissible

There must be a pending dispute (i.e. not at the scene of the accident before any disagreement/dispute as to fault)

Question 6

liability insurance

policy exclusion

Answer 6

Evidence of liability insurance is not allowed in to show liability.

Question 7

offers to pay medical expenses

policy exclusio

Answer 7

Evidence of the payment, offer to pay, or promise to pay medical or similar expenses resulting from an injury is not admissible to prove liability for the injury. Unlike compromise offers, the validity or amount of a claim need not be in dispute.

Question 8

Rape Shield Law

policy exclusion

Answer 8

Generally, pursuant to the “rape shield” rule, evidence to prove the sexual behavior or predisposition of an alleged victim of sexual assault is not admissible in either civil or criminal proceedings.

However, in a civil case, evidence offered to prove an alleged victim’s sexual behavior or predisposition is admissible if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party.

Question 9

Character Evidence in Civil Cases

Answer 9

In a civil case, character evidence is inadmissible to prove conduct in conformity with a character trait unless character is directly at issue as an essential element of a claim or defense, such as in defamation, negligent hiring, or child custody cases.

Question 10

Character Evidence in Criminal Cases (General Rule)

Answer 10

In a criminal case, the prosecution cannot introduce evidence of the defendant’s bad character to show propensity to commit the crime charged.

However, the defendant may introduce evidence of their own good character relevant to the crime charged, and if they do, the prosecution may rebut with contrary character evidence.

Question 11

Character Evidence in Criminal Cases (Victim’s Character & Prior Bad Acts)

Answer 11

If the defendant offers evidence of the victim’s bad character, the prosecution may rebut with evidence of the victim’s good character and may also attack the defendant’s character regarding the same trait.

Evidence of prior crimes or bad acts is inadmissible to show propensity, but it may be admissible for non-propensity purposes, such as to prove motive, intent, absence of mistake, identity, knowledge, or plan (MIMIC evidence).

Question 12

Habit Evidence

Answer 12

Habit evidence is admissible to show that a person acted in conformity with that habit on a particular occasion. A habit is a person’s regular, semi-automatic response to a specific situation, and must be sufficiently specific and consistent.

Question 13

Sexual Conduct of Victim Rule

Answer 13

In a civil case, evidence of a victim’s sexual behavior or predisposition is admissible only if the probative value substantially outweighs the danger of harm to the victim and unfair prejudice to any party. In criminal cases involving sexual misconduct, such evidence is generally inadmissible except under very narrow exceptions.

Question 14

Impeachment by Prior Conviction

Answer 14

A witness may be impeached with evidence of a prior conviction for a crime involving dishonesty or false statement, regardless of the punishment. For other felonies, the evidence is admissible if the probative value outweighs the prejudicial effect, especially if the witness is the defendant.

Question 15

Old Convictions

Answer 15

If more than 10 years have passed since the conviction or release (whichever is later), the conviction is admissible only if the probative value substantially outweighs its prejudicial effect and the proponent gives advance notice.

Question 16

Impeachment by Bias or Sensory Defect

Answer 16

A witness’s bias or interest is always relevant to credibility and may be proven by extrinsic evidence. A witness may also be impeached by showing lack of sensory capacity or by prior inconsistent statements.

Question 17

Lay Opinion Testimony

Answer 17

Lay opinion testimony is admissible if it is rationally based on the witness’s perception and helpful to understanding the witness’s testimony or a fact in issue.

Question 18

Expert Opinion Testimony

Answer 18

Expert opinion testimony is admissible if the expert is qualified, the testimony is based on sufficient facts or data, is the product of **reliable principles **and methods, and the expert **reliably applied **those principles to the case.

Question 19

Hearsay Definition

Answer 19

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Hearsay is inadmissible unless it falls within an exception or exclusion. Watch for double hearsay—each layer must fall under an exception.

Question 20

List of Hearsay Exclusions

Answer 20

1. Effect on the Listener
2. Legally Operative Facts (Verbal Acts)
3. Circumstantial Evidence of State of Mind
4. Admissions by a Party Opponent
5. Co-Conspirator Statements
6. Prior Inconsistent Statements (given under oath)
7. Prior Identification

Question 21

hearsay exclusion - effect on the listener

Answer 21

A statement is not hearsay when it is offered to show its effect on the person who heard or read it, such as to prove notice, motive, fear, or reasonableness of conduct—not for the truth of what was said.

Question 22

hearsay exclusion - legally operative facts (verbal acts)

Answer 22

Statements that have independent legal significance simply by being spoken are not hearsay. Examples include words of contract formation (“I accept”) or statements like “I do” in a wedding.

Question 23

hearsay exclusion - state of mind (circumstantial evidence)

Answer 23

Statements used to show the declarant’s mental state (e.g., intent, belief, sanity) rather than to prove the truth of the statement are not hearsay. Example: “I am the Queen of England” offered to show delusion.

Question 24

hearsay exclusion - admissions by party opponent

Answer 24

A statement made by a party to the case, offered against them by the opposing party, is not hearsay. This includes direct admissions, adoptive admissions, vicarious admissions, and authorized statements.

Question 25

hearsay exclusion - co-conspirator statements

Answer 25

A statement made by a co-conspirator during and in furtherance of a conspiracy is not hearsay when offered against another co-conspirator.

Question 26

hearsay exclusion - prior inconsistent statement (under oath)

Answer 26

A witness’s prior statement that is inconsistent with their current testimony and was made under oath at a prior trial, hearing, or deposition is not hearsay and is admissible substantively.

Question 27

hearsay exclusion - prior identification

Answer 27

A prior out-of-court identification of a person after perceiving them is not hearsay if the declarant testifies and is subject to cross-examination, even if they no longer remember the identification.

Question 28

when is a declarant "unavailable"

Answer 28

A declarant is unavailable if they are (1) exempt from testifying due to privilege, (2) refuse to testify despite a court order, (3) do not remember the subject matter, (4) are dead or too ill, or (5) are absent and cannot be subpoenaed or otherwise brought to court.

Question 29

list of hearsay exceptions when the declarant is unavailable

Answer 29

1. Former Testimony 1. Dying Declaration 1. Statement Against Interest 1. Statement of Personal or Family History 1. Forfeiture by Wrongdoing

Question 30

hearsay exception - declarant unavailable: former testimony

Answer 30

Testimony given under oath at a prior proceeding is admissible if the party against whom it is offered had a prior opportunity and similar motive to develop the testimony by direct or cross-examination.

Question 31

hearsay exception - declarant unavailable: dying declaration

Answer 31

A statement made by a declarant who believes death is imminent, concerning the cause or circumstances of what they believe to be their impending death, is admissible in civil cases and homicide prosecutions.

Question 32

hearsay exception - declarant unavailable: statement against interest

Answer 32

A statement is admissible if, when made, it was so contrary to the declarant’s own pecuniary, proprietary, or penal interest that a reasonable person would not have made it unless it were true. If offered in a criminal case to exonerate someone, it must be corroborated.

Question 33

hearsay exception - declarant unavailable: personal or family history

Answer 33

Statements about the declarant’s own birth, adoption, marriage, divorce, parentage, or similar facts of personal or family history are admissible even if the declarant had no way of acquiring personal knowledge.

Question 34

hearsay exception - declarant unavailable: forfeiture by wrongdoing

Answer 34

If a party intentionally caused the declarant’s unavailability (e.g., by threatening or killing them) in order to prevent testimony, then any of the declarant’s statements may be used against that party.

Question 35

hearsay exceptions - availability immaterial

Answer 35

These exceptions apply regardless of whether the declarant is available to testify or not. **LIST** 1. Present Sense Impression 1. Excited Utterance 1. Then-Existing State of Mind 1. Statement for Medical Diagnosis or Treatment 1. Recorded Recollection 1. Business Records 1. Public Records 1. Ancient Documents 1. Learned Treatises

Question 36

hearsay exception - availability immaterial: present sense impression

Answer 36

A statement made while or immediately after perceiving an event, describing or explaining that event, is admissible as a present sense impression.

Question 37

hearsay exception - availability immaterial: excited utterance

Answer 37

A statement made while under the stress of a startling event, relating to that event, is admissible if the declarant was still emotionally affected by the event when speaking.

Question 38

hearsay exception - availability immaterial: then-existing state of mind

Answer 38

Statements of the declarant’s then-existing mental, emotional, or physical condition (such as intent, plan, motive, or pain) are admissible to prove that condition or conduct in conformity with it.

Question 39

hearsay exception - availability immaterial: medical diagnosis or treatment

Answer 39

Statements made for the purpose of obtaining medical diagnosis or treatment, describing symptoms, pain, or the cause of the condition (if reasonably pertinent), are admissible. Statements may be made by or to someone other than a doctor.

Question 40

hearsay exception - availability immaterial: recorded recollection

Answer 40

If a witness once knew something but cannot recall it well enough to testify, a record they made or adopted when the matter was fresh in memory may be read into evidence—but not admitted as an exhibit unless offered by the opposing party.

Question 41

hearsay exception - availability immaterial: business records

Answer 41

A record made at or near the time of an event by someone with knowledge, kept in the course of a regularly conducted business activity as part of a regular practice, is admissible unless untrustworthy.

Question 42

hearsay exception - availability immaterial: public records

Answer 42

Records or reports of public offices are admissible if they set out activities of the office, observations made pursuant to a duty, or factual findings in civil or government-against-government criminal cases—unless circumstances indicate untrustworthiness.

Question 43

hearsay exception - availability immaterial: ancient documents

Answer 43

A document that is at least 20 years old and whose authenticity is established is admissible under this exception.

Question 44

hearsay exception - availability immaterial: learned treatises

Answer 44

Statements from authoritative publications may be read into evidence (but not received as exhibits) if relied upon by an expert on direct or used to cross an expert and the publication is shown to be reliable.

Question 45

Confrontation Clause Rule

Answer 45

In a criminal case, a testimonial out-of-court statement offered against the defendant is inadmissible under the Confrontation Clause unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant.

Question 46

Marital-communications privilege

Answer 46

protects confidential communications between spouses during the marriage from disclosure in a civil or criminal case, even after the marriage has ended Both spouses hold the marital-communications privilege. This means that (1) a spouse may assert the privilege and refuse to testify about a confidential marital communication or (2) one spouse can prevent the other from testifying to the communication.

Question 47

Spousal-immunity privilege

Answer 47

protects persons in an active marriage from testifying against their spouse in a criminal case about any matters that occurred before or during the marriage the winess spouse is the privilege holder and this is only active during the marriage

Question 48

best evidence rule and physical evidence

Answer 48

The best evidence rule generally requires that an original recording, writing, or photograph be produced to prove its contents. However, real or physical evidence is not subject to this rule.

Question 49

extrinsic evidence of a witness's prior inconsistent statement

Answer 49

Extrinsic evidence of a witness's prior inconsistent statement generally is admissible only if the impeached witness had an opportunity to explain or deny—and the adverse party can examine the witness about—the statement.

Question 50

specific instances of conduct

Answer 50

A witness's character for truthfulness can be attacked with a specific instance of conduct (SIC) involving a criminal conviction for a felony or crime of dishonesty—regardless of whether the SIC is introduced intrinsically or extrinsically. However, a SIC involving a mere bad act can only be introduced intrinsically.

Question 51

bursting bubble approach

Answer 51

Under the "bursting bubble" approach, a rebuttable presumption "bursts" when the opposing party in a civil case produces sufficient evidence to contradict the presumed fact. The fact finder must then weigh the evidence to decide the issue.

Question 52

Authenticating an item of evidence that is a physical representation of something that could not otherwise be seen

Answer 52

Authenticating an item of evidence that is a physical representation of something that could not otherwise be seen (i.e., an x-ray) requires proof that (1) the process for creating the evidence was accurate, (2) the machine that produced the evidence was working properly, and (3) the operator of the machine was qualified to operate it.

Question 53

a declarant-witness's prior statement is excluded from hearsay if

Answer 53

(1) the declarant testifies and is subject to cross-examination and (2) the statement: - **inconsistent** with the declarant's testimony and was given **under penalty of perjury** at a trial, hearing, deposition, or other proceeding - **consistent** with the declarant's testimony and offered to (1) **rebut** a charge of recent fabrication or improper influence or (2) **rehabilitate** the declarant's credibility when attacked on other grounds or - **identifies** a person as someone the declarant perceived earlier.

Question 54

doctrine of curative admission

Answer 54

Under the doctrine of curative admission, when inadmissible evidence is improperly admitted against a party, the court may permit that party to introduce additional inadmissible evidence for the purpose of rebuttal. This is meant to remedy the prejudicial effect caused by the previously admitted evidence.

Question 55

statement offered against a party-opponent is nonhearsay

Answer 55

A statement offered against a party-opponent is nonhearsay if it was (1) made or adopted by the party-opponent, (2) made by a person the party-opponent authorized to make such a statement, (3) made by the party-opponent's agent or employee about a matter within the scope of that relationship and during the relationship, or (4) made by the party-opponent's coconspirator during and in furtherance of the conspiracy.

Question 56

federal inadvertent-waiver rule

Answer 56

Under the federal inadvertent-waiver rule, an inadvertent disclosure of protected information does not waive the attorney-client privilege or the attorney work-product doctrine if (1) the disclosure was in a federal proceeding or to a federal agency and (2) the privilege holder attempted to prevent disclosure and promptly tried to rectify the error.

Question 57

impeachment based on bias

Answer 57

"A party may impeach a witness's credibility by offering evidence that the witness is biased and therefore had a motive to lie while testifying. One method of establishing bias is showing that the witness is affiliated with the opposing party outside the context of the litigation. This can be established through either: - intrinsic evidence – by questioning the witness about the affiliation or - extrinsic evidence – by introducing the affiliation using any source other than the witness's testimony."

Question 58

Posttrial juror testimony is admissible if

Answer 58

Posttrial juror testimony is admissible if it concerns (1) extraneous prejudicial information brought to the jury's attention, (2) an outside influence improperly brought to bear on a juror, or (3) a mistake made in entering the verdict onto the verdict form.

Question 59

Once a witness has used a writing to refresh his/her recollection, the adverse party is entitled to

Answer 59

(1) have the writing produced for inspection, (2) cross-examine the witness about the writing, and (3) introduce into evidence any portion of the writing that relates to the witness's testimony.

Question 60

preliminary questions of fact

Answer 60

The court must decide preliminary questions of fact related to whether evidence is admissible, a privilege exists, or a witness is qualified. Any hearing on these matters must be conducted outside the jury's presence if (1) the matter involves the admissibility of a confession, (2) a defendant in a criminal case is a witness and so requests, or (3) justice so requires.

Question 61

authenticating photographs

Answer 61

Tangible evidence must be authenticated before it can be admitted at trial. This requires a **prima facie showing that the object is what the proponent claims it to be. ** A photograph is authenticated by having a witness with personal knowledge—i.e., knowledge based on firsthand observation or experience—of the thing depicted testify that the photograph fairly and accurately depicts that thing.

Question 62

judicial notice

Answer 62

"Federal Rule of Evidence 201 allows a court to take judicial notice—on its own initiative or upon a party's request—of any adjudicative fact that is not subject to reasonable dispute because it: - is generally known within the territorial jurisdiction of the trial court or - can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. In a **civil case**, the court must instruct the** jury that it is required to accept** the noticed fact as conclusive. But in a **criminal case**, the court should instruct the jury that it **may accept** the noticed fact as conclusive."

Question 63

evidence of compromise offers

Answer 63

"Public policy encourages the settlement of disputes. As a result, FRE 408 generally bars the admission of evidence of compromise offers (or acceptance of such offers), as well as conduct or statements made during compromise negotiations, when that evidence is offered to: - prove or disprove the validity or amount of a disputed claim or - impeach by a prior inconsistent statement or contradiction. This is true even when the party seeking to introduce such evidence was not a party to the agreement."