Evidence

Question 1

what is the definition of hearsay?

Answer 1

out of court statement, other than one made by the declarant while testifying at the trial or hearing, offered to prove the truth of a matter asserted in the statement

Question 2

Statements NOT considered hearsay

Answer 2

1) Verbal Acts- defamation, contract formation
2) Effect on Reader or Hearer- admissible to prove its effect on a reader or hearer
3) Prior Statements by Witness
4) Statements Attributable Party Opponent

Question 3

Types of Prior Statements by a witness that are NOT considered hearsay

Answer 3

1) Prior Inconsistent Statements- impeachment only if not under oath; Impeachment and substantive if made under oath.
2) Prior Consistent Statements- if a witness’s previous statement is consistent with testimony at a trial, it is not hearsay if it is proffered to rebut a party-opponent’s allegations of recent fabrication.
3) Prior ID of a witness- not hearsay, constitutes substantive evidence,

Question 4

Types of Statements Attributable to a Party Opponent that are NOT hearsay

Answer 4

1) A party opponent is an adverse party in a lawsuit. Admissible if: statement is offered by another party against the party-opponenet, party-opponent’s position is inconsistent with the out-of-court statement.

Question 5

Exceptions to Hearsay- Immaterial Availability

Answer 5

1) Present sense impression
2) Excited utterance
3) Statements of mental, emotional, or physical condition
4) Statements for medical diagnosis and treatment
5) Past recollection recorded
6) Records of regularly conducted activity
7) Public records and reports
8) Ancient documents, learned treatises

Question 6

Exceptions to hearsay- Unavailability required

Answer 6

1) Former Testimony
2) Statement under belief of impending death - admissible in ALL civil proceedings, admissible only in criminal homicide
3) Statements against interest- made contrary to defendant’s interests at the time when made by the declarant (declarant does not have to be party to the case)

Question 7

Hearsay Exception

Answer 7

Declaration of state of mind- declarations of intent offered to show subsequent acts of the declarant are admissible

Question 8

Is evidence of habit admissible or inadmissible?

Answer 8

Habit- describes a person’s regular response to a repeated specific situation.

Relevant to prove that person’s conduct on a particular occasion was in conformity with that habit.

Question 9

Is a misdemeanor conviction admissible?

Answer 9

Inadmissible hearsay, not admissible under any exception.

Question 10

In a civil case, can you admit evidence of character?

Answer 10

Character evidence as proof of conduct in the litigated event is not admissible in a civil case UNLESS, character is directly in issue (ex. defamation case)

Question 11

What is the effect of judicial notice in a criminal case?

Answer 11

A judge may take judicial notice of a fact that is a matter of common knowledge in the community but, a jury is not required to accept the fact as conclusive in a criminal case.

Question 12

Are prior bad acts admissible?

Answer 12

A defendant’s other crimes and misconduct are only admissible if relevant to an issue other than the defendant’s character or propensity to commit the crime charged.

Acts admissible to show- motive, intent, common plan, absence of mistake, identity; Or - habit

Question 13

What is a statement against interest?

Answer 13

Hearsay exception; Statement of a person unavailable as a witness who made a statement against that person’s pecuniary, proprietary, or penal interest when made.

And collateral facts contained in the statement are admissible as an exception to the hearsay rule.

1) Must have personal knowledge of the facts
2) Must be aware statement was against interest
3) No motive to misrepresent when the statement was made

Question 14

Are prior bad acts admissible?

Answer 14

When a person is charged with one crime, extrinsic evidence of other crimes or misconduct is inadmissible if such evidence is offered solely to establish a criminal disposition.

Question 15

What are proper methods of impeachment?

Answer 15

Via cross-examination or extrinsic evidence (includes another witness’s testimony)

Impeachment on a collateral matter is prohibited.

Question 16

What are some preliminary questions of fact that a judge may rule on?

Answer 16

1) whether a witness is an expert
2) competency of a witness to testify
3) privilege of evidence

Question 17

When is a motion to strike effective?

Answer 17

Only when there was no basis or opportunity for an earlier objection; An objection must be made after a question is asked and before a witness answers.

Question 18

When does the physician-patient privilege apply?

Answer 18

Only privileged if in the course of treatment

Question 19

When is impeachment by extrinsic evidence of a specific instance of misconduct admissible?

(check this)

Answer 19

Only permissible on cross-ex

Question 20

Is habit admissible or inadmissible?

Answer 20

Habit- describes a person’s regular response to a repeated specific situation.

Relevant to prove that a person’s conduct on a particular occasion was in conformity with that habit

Question 21

Character evidence admissible in a civil case?

Answer 21

Evidence of character to prove the conduct of a person in the litigated event is generally not admissible.

Question 22

Admission by a Party Opponent - hearsay or an exception?

Answer 22

Nonhearsay

Admission- statement made / act done that amounts to prior acknowledgment by one of the parties to an action of one of the relevant facts.

Question 23

Admissions in conjunction with a settlement offer; admissible or inadmissible?

Answer 23

Inadmissible to prove negligence, liability, or a claim’s value.
For public policy reasons.

Question 24

Admission by party opponent = nonhearsay

Answer 24

Admission by a party opponent is a statement against the party’s interest at the time of trial.

Question 25

Reputation evidence as to the victim, is it admissible?

Answer 25

Defendant can offer reputation and opinion evidence of a victim's character where, if a victim acted in conformity with his character it would prove the innocence of the defendant.

Question 26

What is the "mercy rule" - only applies to criminal cases involves reputation of the defendant

Answer 26

The defendant may offer pertinent character evidence to prove his innocence in the form of reputation or opinion.

Question 27

Can you impeach a reputation witness?

Answer 27

A reputation witness may be questioned about specific instances bearing on the reputation Not knowing reflects witness's competence to testify to reputation.

Question 28

Evidence of the habit of a person or of the routine practice of an organization; what is it relevant to prove?

Answer 28

that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice

Question 29

Authentication and Identification of a Voice - is it permissible?

Answer 29

Id of a voice; by opinion based on hearing the voice at any time under circumstances connecting it with the alleged speaker.

Question 30

Two types of relevance 1. ) Logical 2. ) Legal

Answer 30

1. ) Legal- probative value is not outweighed by undue prejudice 2. ) Logical- proves/disproves a material fact

Question 31

Can a witness refer to collateral documents without producing the document?

Answer 31

Best evidence rule does not cover a collateral matter

Question 32

Best evidence rule- when does it apply?

Answer 32

In order to prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is generally required. 1. ) must be essential to the disposition of legal issues in controversy 2. ) proponent must seek to establish the contents of an item being presented

Question 33

Best evidence rule exceptions

Answer 33

1) A duplicate is allowed as evidence instead of an original unless a party opponent presents a genuine issue regarding authenticity or a specific situation it would not be fair to admit the duplicate 4 exceptions a) either destroyed or lost (not through bad faith or misconduct) b) cannot be secured through normal judicial channels c) party against whom it would have been proffered has position and failed to product it despite adequate notice d) Not necessary for a collateral matter

Question 34

Exceptions to the scope of cross examination

Answer 34

Cross examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. Court may in the exercise of discretion, permit inquiry into additional matters as if on direct examination.

Question 35

Methods of impeachment- prior inconsistent statement | double check

Answer 35

hearsay declarants can be impeached

Question 36

Character trait - differs from habit (double check)

Answer 36

evidence of character / character trait is inadmissible to show acted in conformity with.

Question 37

When is a pertinent trait of character admissible in a criminal case?

Answer 37

Defendant uses to prove good character and innocence Prosecutor uses to rebut the defendant's evidence of good character Prosecutor uses to rebut evidence of victim's bad character

Question 38

When attacking witness credibility is extrinsic evidence admissible?

Answer 38

Specific instances of the conduct of a witness for the purpose of attacking or supporting credibility other than a conviction may not be proved by extrinsic evidence At the court's discretion if probative of truthfulness, may be inquired into on cross-examination of the witness

Question 39

Can a trial judge use hearsay to rule on preliminary questions?

Answer 39

Yes; in preliminary questions of admissibility the court is NOT bound by the rules of evidence, except those with respect to privileges.

Question 40

Is impeachment permissible on collateral matters?

Answer 40

Extrinsic evidence can only introduced to impeach a witness; IF it also bears on a substantive issue in the case.

Question 41

What is the marital privilege rule in federal court?

Answer 41

Criminal case: witness spouse holds privilege and can choose to testify without consent of the accused spouse (spousal privilege) EXCEPT as to confidential communication occurring during the marriage.

Question 42

Expert witness scope of testimony; mental state/condition

Answer 42

No expert testifying with respect to the mental state or condition of a defendant can give an opinion as to whether or not the defendant had the requisite mental state to commit a crime.

Question 43

In a civil case, is it admissible to admit an offer to pay medical expenses?

Answer 43

Inadmissible to show liability

Question 44

Define impeachment

Answer 44

Casting of an adverse reflection on the truthfulness of a witness

Question 45

Dead Man Act

Answer 45

Party/person interested in an event is incompetent to testify against a deceased (personal transaction/communication with a deceased) when such testimony is offered against the representative or successor in the interest of the deceased.

Question 46

Authenticity of a document

Answer 46

1) Preliminary issue to be determined by the jury 2) Any person familiar with an alleged speaker's voice may authenticate a recording of the voice by giving an opinion as to its identity

Question 47

Statements attributable to a party opponent | double check

Answer 47

Expressed opinion/belief of statement's truth authorized person who made statement made by party opponent or co-conspirator (in the course of furthering the conspiracy)

Question 48

Statements by a party opponent party opponent- adverse party in a lawsuit

Answer 48

Admission of a party opponent; party opponent's statement of court is inconsistent with the party opponent's current position 1) evidence is proffered against the party opponent 2) party opponent's position is inconsistent with their prior statement

Question 49

Prior statements by a witness = nonhearsay

Answer 49

Prior inconsistent Prior consistent ID of a witness

Question 50

Prior inconsistent = nonhearsay

Answer 50

made under oath = substantive | not made under oath = impeachment

Question 51

Prior consistent statements = non hearsay

Answer 51

offered to rebut a recent fabrication, improper influence / motive if the statement was made before the motive to fabricate existed.

Question 52

Prior ID = nonhearsay

Answer 52

was made out of court to prove truth when witness tesitfying.

Question 53

Examples of proffered statements made not for the truth of the matter = not hearsay

Answer 53

Verbal Acts - 1) possess independent legal significance (ex. defamatory words in libel / slander suit / contract formation) 2) To prove effect on reader / hearer - examples effect is- notice of information or an emotional response; not to prove truth of the matter

Question 54

Hearsay

Answer 54

Out of court statement made by a declarant offered for the truth of the matter

Question 55

What kind of statements are not hearsay?

Answer 55

1) Not offered to prove the truth of the matter 2) Prior statements by a witness 3) Statements attributable to a party opponent

Question 56

Silent admission- party's failure to respond to a statement or an act is a party admission if:

Answer 56

1) Party opponent against whom evidence is proffered, heard, and had an ability to respond 2) Reasonable person in party-opponent's position would have responded by refuting the statement/act

Question 57

Exceptions requiring the unavailability of the declarant; unavailability- cannot testify due to privilege, refusal to testify, loss of memory, death or illness, reasonable absence

Answer 57

1) Former testimony 2) Statement under belief of impending death 3) Statements against interest 4) General rule, "catch-all"

Question 58

General hearsay exception - witness availability immaterial

Answer 58

1) Past recollection recorded 2) Records of regularly conducted business activity 3) Absence of business records 4) Public records and reports 5) Present sense impression 6) Excited utterance 7) Statements of mental, physical, emotional condition 8) Statements for medical diagnosis and treatment

Question 59

roles of judge and jury

Answer 59

judge- determines admissibility / preliminary questions of fact jury- determines issues of fact: credibility and weight

Question 60

Conviction of a crime - For impeachment

Answer 60

1) Requirement: element must be a false statement / dishonest act to attack witness truthfulness (remember impeachment goes to veracity)

Question 61

What is the exception to the general rule for impeaching via a conviction where a false statement or dishonest act is a required element?

Answer 61

1) The law that a witness violated provides as potential penalties either a death sentence or imprisonment for more than one year 2) Probative value of admitting evidence outweighs prejudicial effect on the accused.

Question 62

How can a conviction for a crime for impeachment purposes be admitted?

Answer 62

Cross-examination; extrinsic evidence- another person who observed conviction testimony of certified copy of judgement of conviction

Question 63

When can evidence of a specific instance of conduct, such as a prior bad act, be admitted? Prior bad act- specific instance of misconduct that did not result in a criminal conviction

Answer 63

1) Cross examination permissible on prior bad acts that are probative of truthfulness 2) Extrinsic evidence not permissible in the form of witness testimony

Question 64

When is character admissible?

Answer 64

Inadmissible to show that a person acted in conformity therewith on a particular occasion