Evidence 2

Question 1

What are the five hearsay exceptions that apply when a defendant is unavailable? (outline)

Answer 1

1) Former testimony

2) Dying declaration

3) Statement against interest

4) Statement of personal or family history

5) Statement offered against a party who wrongfully caused the declarant’s unavailability

Question 2

Is a court bound by the FRE in determining whether a witness is qualified? (P1)

Answer 2

No. Whether a witness is qualified to offer expert opinion testimony is a preliminary question for the court—not the jury. The court is not bound by the rules of evidence when determining such questions.

Ex: A the court may consider otherwise inadmissible hearsay—a letter from a third party supporting an expert’s credibility—in determining if a witness is qualified to provide expert opinion testimony.

Question 3

When does a criminal defendant “open the door” for the prosecution to introduce evidence of the defendant’s bad character under FRE 404? (P1)

Answer 3

A criminal defendant opens the door for the prosecution to introduce evidence of the defendant’s bad character by introducing (1) evidence of his/her own good character for a trait pertinent to the charged crime or (2) evidence of the alleged victim’s bad character.

Question 4

When can a witness be impeached with evidence of a prior conviction? (P1)

Answer 4

Any witness, including a criminal defendant, can be impeached with evidence of a prior conviction for a crime involving dishonesty if the conviction occurred within the previous 10 years

Question 5

How must a court evaluate a child’s competence to testify (if a child’s competence is questioned)? (P1)

Answer 5

If a child’s competency is questioned, then the court must evaluate the child’s:

1) Intelligence
2) Ability to differentiate between truth and falsehood and
3) Understanding of the importance of telling the truth

Question 6

Can a lay witness with personal knowledge of a claimed author’s handwriting testify about it? (P1)

Answer 6

A lay witness with personal knowledge of a claimed author’s handwriting may testify as to whether a document is in that person’s handwriting.

However, the lay witness must not have become familiar with the handwriting for the purpose of the current litigation.

Ex: A bank teller, a lay witness, gained familiarity with the defendant’s handwriting by studying the defendant’s customer signature card given to her by the prosecutor—i.e., for the purpose of the litigation

Question 7

What are the two main situations in which the best evidence rule applies? (P1)

What does the best evidence rule not apply to?

How can a duplicate of a document be challenged?

Answer 7

1) When a witness is relying on the document while testifying (not seen here); or

2) When the contents of the document are at issue (e.g., a written agreement in a breach-of-contract dispute, a will in a probate action)

Real or physical evidence (e.g., a three-dimensional model) is not subject to the best evidence rule (as it only applies to writings, photographs, and recordings)

A duplicate can be challenged if: 1) a genuine question is raised about the original’s authenticity or (2) the circumstances make it unfair to admit the duplicate.

Question 8

When is evidence of a remedial measure inadmissible? What are the exceptions? (P1) (P2)

What is not considered a subsequent remedial measure?

Answer 8

Evidence of a remedial measure is inadmissible if it was undertaken by the defendant after the plaintiff was injured.

A court may allow evidence of subsequent remedial measures for limited purposes such as:

1) Resolving a dispute about the feasibility of precautionary measures
2) Impeaching a witness or
3) Proving ownership or control.

Note: A remedial measure undertaken before the plaintiff was injured is not subject to exclusion. (Basically, this is not a subsequent remedial measure)

Question 9

Under what four circumstances does the hearsay exception for judgment of previous conviction apply? (P1)

Answer 9

Final judgment of a conviction is admissible if:

1) it is entered after trial or guilty plea
2) it is a crime punishable by death or imprisonment of more than one year
3) it is admitted to prove any fact essential to judgment and
4) it is against defendant, when offered by prosecutor in criminal case for purpose other than impeachment

Note: There is no exception for judgments of acquittal because they do not establish innocence, they merely establish that the prosecution failed to meet its burden of proof

Question 10

What is the 10-year limitation rule? (E1)

Answer 10

For any witness (including the criminal defendant), if more than 10 years have elapsed since the conviction (or release, whichever is later), then evidence of the conviction is admissible only if 1) the probative value of the conviction substantially outweighs its prejudicial effect AND 2) the proponent gives the adverse party reasonable written notice of the intent to use such evidence.

Question 11

When does a crime involve dishonesty? (E1)

What is an example of a dishonest act?

Answer 11

A crime involves dishonesty if one of the elements required is proof of an act of dishonesty, such as perjury— (i.e., the willful act of falsely promising to tell the truth about matters material to the outcome of a case.)

Lying about obtaining a degree. This is is highly probative of his untruthfulness because it is a gross misrepresentation

Question 12

What is the standard for whether evidence would prejudice a party? (E1)

Answer 12

If it is evidence of the type of conduct that would inflame the jury

Sex crimes are not relevant to witness credibility, so the probative value of this evidence as it relates to the inmate’s credibility is very low. Additionally, the heinous nature of the sexual assault renders the danger of unfair prejudice very high.

Question 13

When can a court prohibit the use of specific instances of conduct on cross examination? (P2)

Answer 13

The court may prohibit the use of specific instances of conduct if the probative value of such evidence is substantially outweighed by prejudice or to protect the witness from harassment or undue embarrassment.

Question 14

When does adoption by silence occur? (P2)

Answer 14

1) The silent party was present and heard and understood the statement

2) The silent party had the ability and opportunity to deny the statement and

3) A reasonable person similarly situated would have denied the statement

Question 15

Is evidence of a juvenile conviction admissible to attack a witness’ character for truthfulness in a civil case? (P2)

Answer 15

No. Evidence of a juvenile conviction is never admissible in a civil case to attack a witness’s character for truthfulness.

Question 16

What are the two main forms of evidence that can be used to impeach a witness’ testimony? (P2)

What is the rules regarding using intrinsic evidence for specific instances of conduct?

Answer 16

1) Intrinsic evidence – testimony elicited from the witness sought to be discredited and

2) Extrinsic evidence – evidence from any source other than the witness’s own testimony

SIC can always be introduced intrinsically (i.e., by questioning the witness about the SIC). But they can only be introduced extrinsically (i.e., from other sources) if the SIC relates to a criminal conviction for a felony or crime of dishonesty. The examining attorney must also have a good-faith basis for the inquiry.

Question 17

What is the difference between the marital communication privilege and the spousal communication privilege? (P2)

Answer 17

The marital-communications privilege protects confidential communications made between spouses during the marriage. (applies to both civil and criminal cases)

Under the majority view, either spouse may assert the privilege—even after termination of the marriage—and (1) refuse to testify about the communication or (2) prevent the other spouse from testifying. There is no time limit to assert the privilege.

The spousal communications privilege applies to testimony about events that
occurred before or during marriage. (applies to criminal cases only).

Under the majority view, the witness-spouse can choose, but not be compelled, to testify. It can only be asserted during valid marriage (expires upon divorce or annulment)

Question 18

What is character evidence? (P2)

Answer 18

Character evidence refers to generalized information about a person’s (typically, a defendant’s) behavior. Such evidence is generally inadmissible to prove that the person acted in conformity with that character (or trait) on the occasion at issue. (with some exceptions)

Question 19

What is a prior inconsistent statement? How can it be used? (P3)

Answer 19

A prior inconsistent statement is a past statement that is contrary to a witness’s present testimony.

It can be used for impeachment purposes (when the statement is inconsistent with current testimony) OR

Or it can be used for substantive purposes (when the statement is excepted or excluded from hearsay)

Question 20

Come back to make card about exceptions to specific instances of conduct rule..

Question 21

What are the main allowable methods of impeachment? Is extrinsic evidence allowed in each case?

Answer 21

1) Opinion/reputation testimony from another witness (but evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked)

2) Specific instances of conduct/bad acts (extrinsic evidence of specific instances of conduct is generally not allowable, however can be asked specific instances of conduct on cross-examination)

3) Bias or interest (reason to lie, relationship with a party, extrinsic evidence allowable)

4) Sensory competence (ability to perceive or testify accurately, extrinsic evidence allowable)

5) Prior inconsistent statements (extrinsic evidence allowable)

Note: Remember exceptions to specific instances of conduct for criminal convictions

Question 22

How can tangible physical evidence, like a photograph, generally be authenticated? What about an x-ray image?

Answer 22

Requires a prima facie showing that the object is what the proponent claims it to be. For example, a simple photograph is authenticated by having 1) a witness with personal knowledge of the thing depicted 2) testify that the photograph fairly and accurately depicts that thing.

However, authenticating an item of evidence that is a physical representation of something that could not otherwise be seen (like 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 23

What is the initial statement I should use about relevant evidence? (E1)

Answer 23

All relevant evidence is admissible unless excluded by a specific rule, law, or constitutional provision.

Question 24

Can a lay witness generally testify as to his opinion? (E1)

What must a lay witness’ opinion be to be admissible?

Answer 24

A lay witness (non-expert) is generally not permitted to testify as to his opinion, except with respect to the lay witness’s common-sense impressions.

To be admissible, a lay witness’s opinion must be (i) rationally based on the witness’s perception, and (ii) helpful to a clear understanding of the witness’s testimony or a fact in issue.

Note: Contrast with expert witnesses, who are allowed to testify based on their opinions

Question 25

When is a party deemed to have waived the physician-patient privilege? (E1)

Answer 25

In many states, a patient is deemed to have waived the privilege by placing her condition at issue in a personal injury lawsuit.