Evidence Flashcards
(158 cards)
1
Q
What is the definition of relevance
A
Evidence that has any tendency to make a fact of consequence more probable or less probable than would be the case without the evidence
2
Q
What is the threshold inquiry for determining the relevance of evidence?
A
- Materiality (“of consequence”)
2. Probativeness (any tendency to make the proposition more or less likely)
3
Q
All relevant evidence is admissible, unless…
A
- Some specific exclusionary rule is applicable, or
2. The court uses its Rule 403 discretion to keep it out.
4
Q
When may the court may exclude otherwise relevant evidence
A
Under Rule 403, if it determines that the probative value of the evidence is substantially outweighed by
- danger of unfair prejudice,
- confusion of the issues,
- misleading the jury,
- undue delay,
- waste of time, or
- unduly cumulative.
5
Q
Is Plaintiff’s accident history admissible?
A
Generally inadmissible because it shows nothing more than the fact the plaintiff is accident prone.
Admissible if cause of damages is in issue.
6
Q
Are similar accidents caused by defendant involving the same event or condition admissible?
A
Generally other accidents involving defendant are inadmissible because they suggest nothing more than general character for carelessness.
Other accidents involving the same instrumentality or condition and occurring under substantially similar circumstances may be admitted to prove
- Existence of a dangerous condition
- Causation
- Prior notice to the defendant
7
Q
Prior conduct maybe admissible to prove…
A
- Inference of intent on later occasion,
- Selling price of other similar property in the same location and close in time if value is in issue, or
- Habit to show evidence of how a person acted on the occasion.
8
Q
What is the difference between “habit” and “character” evidence?
A
Habit shows frequency of conduct under a particularity of circumstances.
Character evidence refers to a particular person’s general disposition or propensity.
9
Q
When is evidence of liability insurance admissible?
A
Evidence that a person has or does not have liability insurance is inadmissible to prove the person’s fault or absence of fault.
Policy: to avoid risk that jury will base decision on availability of insurance instead of merits of the case.
Admissible to show proof of ownership/control of instrumentality (if disputed) or for impeachment.
10
Q
When is evidence of subsequent remedial measures inadmissible?
A
Inadmissible for purpose of proving negligence, culpable conduct, product defect, or need for warning.
11
Q
Is evidence of a settlement in a civil case admissible?
A
Inadmissible to prove liability or weakness in a party’s case, or to impeach through prior inconsistent statement or contradiction.
Statements of fact made in the course of settlement discussions are also inadmissible for these purposes.
Admissible for purposes of impeaching a witness on the grounds of bias.
12
Q
What is the applicability of exclusionary rule regarding settlement in civil cases?
A
Only applies if there is a claim that is disputed (at the time of settlement discussions) either as to validity or amount of damages
13
Q
Is an of offer to plead guilty admissible?
A
No.
Cannot be used against the defendant in the pending criminal case or in a subsequent civil litigation based on the same facts.
14
Q
Is evidence of a withdrawn guilty plea admissible?
A
No.
Cannot be used against the defendant in the pending criminal case or in subsequent civil litigation based on the same facts.
15
Q
Is evidence of a plea of nolo contendere (“No contest”) in criminal cases admissible?
A
No.
Cannot be used against the defendant in subsequent civil litigation based on the same facts
16
Q
Are offers to pay medical or hospital expenses admissible to prove liability?
A
No.
17
Q
What is character evidence potentially admissible to prove?
A
Potentially admissible to prove:
- Person’s character is material element in the case,
- Conduct in conformity with character at the time of the litigated event, or
- Witness’s bad character for truthfulness to impeach credibility
18
Q
Defendant, during the defense, ____ introduce evidence of a relevant character trait, thereby opening the door to rebuttal by prosecution.
A
May
19
Q
How may the prosecution rebut in a criminal case after the defendant has “opened the door”?
A
- Cross-examining defendant’s character witnesses with “Have you heard” or “Did you know” questions about specific acts; or
- Calling its own reputation or opinion witnesses to contradict the defendant’s witnesses.
20
Q
What evidence of a victim’s character is admissible in a self-defense case?
A
A criminal defendant may introduce evidence of victim’s violent character to prove victim’s conduct in conformity, i.e. circumstantial evidence that victim was the first aggressor.
21
Q
What is the proper method of introducing evidence of a victim’s character in self defense case?
A
Character witness may testify to reputation for violence or may give opinion
22
Q
If the defendant, at the time of alleged self-defense, was [aware/unaware] of the victim’s reputation for violence or specific acts of violence, such awareness may be proven to prove defendant’s state of mind
A
Aware.
23
Q
Character Evidence in a civil case is generally ____________ to show conformity with character.
A
Inadmissible
24
Q
When is character evidence admissible in a civil case?
A
When character is directly in issue (when character is essential element of claim or defense)
Examples:
- Negligent hiring or entrustment
- Defamation suits based on libel or slander
- Child custody
25
What is the proper method for proving character in civil cases?
1. Reputation
2. Opinion
3. Specific Acts
26
Are crimes or specific bad acts or crimes of defendant admissible during prosecution's case-in-chief?
No.
27
When is evidence of a defendant's prior crimes or bad acts permissible in a criminal trial?
```
MIMIC:
Motive
Intent
Mistake, absence of
Identity
Common scheme or plan
```
NOTE: MUST ACTUALLY BE CONTESTED
28
What is the proper method of offering evidence of a defendant's other crimes or bad acts?
May offer evidence of a conviction or other evidence that proves the crime or other bad act occurred.
29
When must the prosecution must give prior notice of intent to use "MIMIC" evidence?
Upon defendant's request.
30
When may MIMIC evidence be used in civil cases?
Can be used if relevant (examples: tort actions of fraud or assault)
31
Generally, in a criminal case alleging sexual assault or child molestation, prior specific sexual misconduct of the defendant is admissible in the ___________ case-in-chief for any relevant purpose, including propensity.
Prosecution's
32
When approaching a "writing question," what three step approach should you take?
1. Consider the best evidence rule
2. Authentication issues
3. Hearsay
33
When introducing a writing into evidence, a showing must be made that the writing is __________.
authentic (i.e. it is what it proports to be)
34
What is the standard for authentication of writings?
Conditional relevancy.
Admissible if the court determines there is sufficient evidence from which a reasonable juror could conclude the document is genuine.
35
What is the methods may be used to authenticate handwriting?
1. From witness's personal knowledge
2. Proof of handwriting lay opinion: lay witness testifies to opinion that X wrote the document based on familiarity with X's handwriting as a result of experience in normal course of affairs (cannot be for the purpose of litigation)
3. Proof of handwriting by an expert: Expert will testify on the basis of comparison between the document and genuine sample of X's handwriting.
4. Jury comparison: Jury compares document with sample of X's writing.
36
What is the procedural method for authenticating an ancient document?
Authentication may be inferred if:
1. At least 20 years old,
2. Facially free of suspicion (no erasures, white outs, etc.)
3. Found in place of natural custody.
37
What is the procedural method for authenticating writing under the Solicited Reply Doctrine?
Doctrine can be authenticated by evidence that it was received in response to a prior communication to the alleged offer
38
What is the procedural method for authenticating a photograph?
Witness can testify on the basis of personal knowledge that a photo is a fair and accurate representation of the people or objects portrayed.
39
No foundational testimony is necessary for introducing self-authenticating documents, including:
1. Official publications,
2. Certified copies of public record on file in the public office,
3. Newspapers, periodicals,
4. Trade inscriptions and labels,
5. Acknowledged documents,
6. Commercial papers,
7. Certified business records (must give reasonable written notice)
40
In order to prove the contents of a writing, recording, or photograph, what must be produced?
The original
41
What is the definition of the best evidence rule?
A party who seeks to prove the contents of a writing must either produce the original writing or provide an acceptable excuse for its absence. If the court finds the excuse is acceptable, the party may then use secondary evidence - oral testimony or a copy.
42
When is the best evidence rule applied?
Two principal Situations:
1. The writing itself is a legally operative document (i.e., the writing itself creates rights and obligations
2. Witness is testifying to facts that she learned solely from reading about them in a writing.
43
When is the best evidence rule not applied?
When a witness with personal knowledge testifies to a fact that exists independently of a writing that records the fact
Event happens --> Witness perceives --> Recorded
44
For the purposes of the best evidence rule, what constitutes an "original writing"?
1. The writing itself: Any counterpart intended to have the same effect; any negative of film or print from the negative; computer printout
2. Duplicate: Any counterpart produced by any mechanical means that accurately reproduced the original (e.g., photocopy, carbon copy)
45
For the purposes of the best evidence rule, to what extent are duplicates admissible?
Duplicate admissible to the same extent as original unless it would be unfair or genuine question is raised as to authenticity of original.
46
What are excuses for non-production of original into evidence?
1. Lost or cannot be found with due diligence
2. Destroyed without bad faith
3. Cannot be obtained with legal process (e.g., in Swiss bank vault)
47
What are the three escapes under the best evidence rule?
1. Voluminous records can be presented through a summary or chart provided the original records would be admissible and they are available for inspection.
2. Certified copies of public record
3. Collateral documents
48
What are the basic requirements for a witness to testify?
1. Personal knowledge,
| 2. Oath or affirmation
49
What are Dead Man's Statutes?
In a civil action, an interested party is incompetent to testify in support of her own interest against the estate of a decedent concerning communications or transactions between the interested party and the decedent.
STATE STATUTE - no "dead man's rule" under FRE
50
When are leading questions allowed?
Generally allowed on cross-examination
Generally not allowed on direct examination, unless
1. preliminary/introductory,
2. youthful/forgetful witness
3. hostile witness, or
4. adverse party
51
When does a right to cross-examination exist?
Party has a right to cross-examine any opposing witness who testifies at the trial.
52
What is the scope of cross-examination?
Matters within the scope of direct examination and matters that test the witnesses credibility
53
Under refreshing recollection, may a witness read from a prepared memorandum?
No. She must testify on basis of current recollection.
54
If witness's recollection is refreshed during testimony, adversary has right to:
1. inspect the memory refresher,
2. use it on cross-examination, and
3. introduce it into evidence.
If refreshing happens before witness testifies, the adversary is not entitled to these options, but the judge has discretion to allow it.
55
What foundation must be laid before the recorded recollection exception may be used?
1. Showing writing to witness fails to jog memory,
2. Witness had personal knowledge at former time,
3. Writing was made either by witness or adopted by witness,
4. Making or adoption occurred when the event was fresh in witness's memory, and
5. Witness can vouch for accuracy of writing
56
Lay witness opinions are admissible if:
1. Rationally based on the witness's perception (personal knowledge) and
2. Is helpful to the jury in deciding a fact.
57
What qualifications are necessary for an expert witness?
Education and/or experience
58
What subject matter may an expert witness testify to?
May talk about scientific, technical, or otherwise specialized knowledge that will be helpful to a jury in deciding a fact.
NOTE: Need not be necessary. Because you could do it without an expert, does not mean expert is precluded.
59
Expert must have opinion based on reasonable degree of probability or reasonable certainty based on:
1. Personal knowledge (e.g., treating physician);
2. Other evidence in trial record (usually made known for basis of hypothetical question; or
3. Facts outside the record, if they are a type reasonably relied upon in the field by experts in forming their opinions.
60
What four factors must a judge use, in his gatekeeping role, to determine the reliability of an expert witness's testimony?
TRAP
1. Testing of principles or methodology,
2. Rate of error,
3. Acceptance by experts in the same discipline,
4. Peer review and publication
61
Either a lay or expert witness may provide opinion testimony, even if it addresses an ultimate issue in the case, except when:
the opinion is simply legal jargon (e.g., "It looked to me like Defendant was engaged in conduct constituting a reckless disregard for the safety of others.")
This is not admissible because it is not helpful to the jury.
62
Opinion testimony on the ultimate issue in a criminal case is ______________ if the expert tries to give an opinion on the mental state of the defendant.
Objectionable
63
When is bolstering a witness's credibility before it has been attacked allowed?
Prior identification of a person by trial witness. It is not also not barred by the hearsay rule (exclusion from hearsay, comes in as substantive evidence).
64
When may a party impeach its own witness?
Permitted without limitation.
65
What are the methods of impeachment?
1. Prior inconsistent statement
2. Bias, interest, or motive to misrepresent
3. Sensory defects
4. Contradiction.
5. Bad reputation about witness's character for truthfulness
6. Criminal conviction
7. Bad acts without conviction that reflect poorly on witness's character for truthfulness.
66
Impeachment Methods Analysis
1. Can the impeaching method be proved by extrinsic evidence or is party bound to witness's answer to impeaching question?
2. Assuming extrinsic evidence is permissible, must the witness first be confronted with impeaching fact before extrinsic evidence is used.
67
When may a witness be impeached with her prior inconsistent statement?
Any witness may be impeached by showing on some prior occasion she made a material statement that is inconsistent with trial testimony
Purpose: suggest trial testimony is false or mistaken.
68
When are prior inconsistent statements admissible as substantive evidence?
If they were made under oath, as part of a hearing, proceeding, trial, or deposition, may be admitted for both impeachment and as substantive evidence to prove the truth of the matter asserted.
69
Can you introduce extrinsic evidence to impeach a witness with a prior inconsistent statement?
Yes.
70
May a party impeach a witness based on his or her bias?
Always.
Purpose: Suggest testimony is false, slanted, or mistaken in party's favor.
71
What type of evidence may be used to impeach a witness based on her sensory deficiencies?
Anything that can affect the witness's perception or memory.
Purpose: Suggest mistake
72
Must you confront a witness with alleged bias while she is on the stand?
No. The court has discretion to order you confront the witness with alleged bias while on the stand.
If confrontation requirement is met, may be proven by extrinsic evidence even if witness admits the bias (within court's discretion)
73
Must a witness confront a witness with impeachment for sensory deficiencies? May extrinsic evidence be introduced?
Confrontation is not required and extrinsic evidence is allowed.
74
What is impeachment by contradiction?
Cross-examiner through confrontation of a witness may try to obtain an admission that she made a mistake or lied about any facts she testified to during direct. If witness admits the mistake, she has been impeached by contradiction. However, if she sticks to her story, the issue becomes whether extrinsic evidence may be introduced to prove the contradictory fact.
75
Must a witness confront a witness with impeachment by contradiction? May extrinsic evidence be introduced?
Yes, confrontation is required.
Extrinsic evidence is not allowed for the purpose of contradiction if the fact at issue is collateral (no significant relevance to the case or witness's credibility)
76
What is a collateral issue?
An issue that has no significant relevance to the case or witness's credibility
77
How may you impeachment a witness with their bad reputation or opinion about a witness's character for truthfulness?
Call a character witness to testify that the target witness has a bad character for truthfulness, or that character witness has a low opinion of target witness's truthfulness.
Purpose: suggest target witness is not telling the truth.
78
Must a witness confront a witness with impeachment for their bad character or reputation for untruthfulness? May extrinsic evidence be introduced?
Confrontation is not required.
Extrinsic Evidence is allowed.
79
Why is impeachment with evidence of criminal conviction allowed?
The purpose is to suggest testimony is false.
Rationale: Person who has been convicted of a crime is more likely to lie under oath than someone who has not.
80
Which types of crimes are allowed for impeachment purposes?
1. Any crime involving dishonesty or false statement may be used to impeach.
2. Felony convictions, regardless of whether they involve dishonesty.
81
What is the remoteness requirement for criminal convictions in evidence?
Generally, the conviction or release from prison, whichever is later, must be within 10 years from the witness's testimony.
In rare circumstances, the court can override this if the probative value substantially outweighs the prejudicial effect.
82
What are the methods for admitting criminal convictions?
1. Ask them to admit the prior conviction, or
2. Introduce record of conviction.
No confrontation required.
83
What is the effect of a pardon and its admissibility into evidence?
Conviction is not admissible if it was subject to pardon, annulment, or other equivalent procedure, and
1. Pardon was based on finding of rehabilitation and witness has not been convicted of subsequent felony, or
2. Pardon was based on a finding of innocence.
84
Must you confront a witness with prior bad acts involving untruthfulness for impeachment and is extrinsic evidence permitted?
Confrontation on cross examination is the only permissible means
No extrinsic evidence permitted.
85
How may a opponent impeach the credibility of a hearsay declarant who is unavailable at trial?
Opponent may use any of the impeachment methods to attack the credibility of the hearsay declarant
86
When is rehabilitation by showing a witness's good character for truthfulness allowed?
Opponent used methods of attacking witness' general bad character
87
When is impeachment with a prior consistent statement allowed?
Witness is charged with fabrication based on recent motive or improper influence and the statement was made before the motive arose. OR The statement rehabilitates a witness impeached on another ground such as prior inconsistent statement or faulty memory.
NOTE: prior consistent statements admissible to rehabilitate are also admissible as substantive evidence (hearsay exclusion).
88
What is hearsay?
An out of court statement offered to prove the truth of the matter asserted
NOTE: statement must be of a person. (not machine or animal)
89
What is the method to determine if a statement is hearsay?
(1) determine proposition to be proved by the statement
(2) identify the fact or belief contained in the statement
If they match then its hearsay
90
Is hearsay admissible?
No unless an exception or exclusion applies.
91
When are multiple layers of hearsay admissible?
When each statement meets some hearsay exception
92
What statements are not hearsay?
statements offered to prove something other than the truth of the matter asserted, such as a verbal act ("I do"); effect on listener or reader; or circumstantial evidence of the declarant's state of mind.
93
What statements are excluded from the definition of hearsay?
(1) witness's prior statement of identification
(2) witness's prior inconsistent statement if made under oath
(3) witness's prior consistent statement offered to rehabilitate the witness
(4) statements by a party opponent
94
what constitutes a statement by a party opponent
(1) verbal statement adoptive statement or vicarious statement made by a party opponent
95
What is a vicarious statement by a party opponent
(1) statement made by an agent/ employee if it concerns a matter within the scope of the agency or employment and during the agency or employment
(2) statement of a co-conspirator during the scope of the conspiracy
96
When is silence an adoptive statement?
when a reasonable person would have denied in the face of an accusation.
97
What are grounds for unavailability of a declarant?
(1) death or illness
(2) absence from jurisdiction
(3) privilege
(4) stubborn refusal
(5) lack of memory
98
What are the requirements for the former testimony hearsay exception?
The declarant must be unavailable, and the former testimony must have been given during a former proceeding or deposition; and is offered against a party who on the prior occasion had an opportunity and motive to cross examine or develop the testimony of the witness
99
What are the requirements for the statements against interest hearsay exception?
Declarant must be unavailable, and it must be a statement against the declarants pecuniary, proprietary, or penal interest, and must be made with personal knowledge.
100
What is the difference between the statements against interest and statement by party opponent hearsay exceptions?
Any person can make a statement against interest, personal knowledge is required, and the declarant must be unavailable.
Statement by a party opponent must be by a party opponent, no personal knowledge is required, and the party need not be available.
101
Can you enter a statement against penal interest in a criminal case?
Yes, but must be corroborated.
102
What are the requirements for the dying declarations hearsay exception?
1. Declarant must be unavailable,
2. Must be made in a civil or criminal homicide case,
3. Statement must be made under belief of imminent death, and
4. Must concern circumstances of death.
Declarant need not actually die.
103
What are the requirements for the excited utterance exception to the hearsay rule?
Statement concerning a startling event made while the declarant is still under the stress of excitement caused by the event.
104
What are the requirements for the present sense impression exception to the hearsay rule?
Description of event made while the event is occurring or immediately thereafter.
105
What are the requirements for the present state of mind hearsay exception?
Contemporaneous statement regarding the declarant's state of mind, feelings, or emotions.
106
What are the requirements for the declaration of intent hearsay exception?
Statement of declarant's intent to do something in the future, including the intent to engage in conduct with another person.
107
What are the requirements for the present physical condition hearsay exception?
Statement made to anyone about the declarant's current physical condition.
108
What are the requirements for the statement for purposes of medical diagnosis or treatment hearsay exception?
Statement made to anyone concerning past or present symptoms or general cause of condition for the purpose of treatment or diagnosis.
Applies even when physician is retained solely for the purpose of being an expert in litigation.
109
What are the requirements for the business records hearsay exception?
1. Records of any type of business organization, including non-profit,
2. Made in the regular course of business,
3. The business regularly keeps such records.
4. Made at or near the time the events recorded,
5. Contents consist of information observed by employees of the business (must have a business duty to report),
6. Statement by an outsider is only admissible if it falls within an independent hearsay exception.
110
How do you lay proper foundation for a business record's admission into evidence?
1. Call a sponsoring witness to testify to the elements (the witness need not be the author - can be a records custodian or any other knowledgeable person), or
2. May submit an affidavit or sworn affirmation attesting to the elements.
111
What are the requirements for the public records exception to the hearsay rule?
1. Record must set forth the activities of the office or agency,
2. Matters observed pursuant to a duty to observe by law, or
3. Findings of fact or opinion authorized by law
112
What are the exceptions to the public and business records hearsay exceptions?
Police reports and investigatory findings are not admissible against the defendant in a criminal case under either exception.
113
When does the confrontation clause prohibit hearsay statements?
When they are testimonial hearsay statements against a criminal defendant if the declarant is unavailable and has had no opportunity for cross-examination.
114
What types of communication are typically considered testimonial?
Includes prior sworn testimony, but also statements to police officers (sworn or unsworn) and certain documents (e.g., forensic analysis reports).
115
When are statements to law enforcement considered testimonial?
When they are made to help police gather information for eventual prosecution.
(If providing information to police in ongoing emergency, not testimonial)
116
What law governing privileges applies to cases pending in federal court arising under federal substantive law?
Federal common law
117
What law governing privileges applies to cases pending in federal court arising under diversity jurisdiction?
State law of which the substantive law is applicable.
In diversity actions, also apply state law on competency (Dead Man's Statute), burdens of proof, and presumptions.
118
What are the elements of the attorney-client privilege?
Privilege applies to:
1. Confidential communications,
2. Between attorney and client, or representative of either,
3. Made during professional legal consultation,
4. Unless privilege is waived or exception is applied.
119
What is a confidential communication?
One the client intends to be confidential, but no privilege exists if client knows third-party is listening.
120
What is the joint client rule?
If two or more clients with common interests and the same attorney, their communications with counsel concerning the common interests are privileged as to third parties, but in a later dispute between the clients, the privilege does not apply between them.
121
What is not included in the definition of a communication?
1. Underlying information,
2. Pre-existing documents, or
3. Physical evidence
122
Who is an attorney for purposes of the attorney-client privilege?
Any member of the bar or person that client reasonably believes is a member of the bar.
123
Who is a representative of the attorney?
Any agent reasonably necessary to facilitate the provisions of legal services (e.g., paralegal, accountant (reasonably necessary for case)).
124
Who is a client for purposes of the attorney-client privilege?
Includes a person seeking to become a client, as well as existing clients.
125
Who is a representative of a client for purposes of the attorney-client privilege?
An agent reasonably necessary to facilitate the provision of legal services. (example: corporate clients)
126
When does the attorney-client privilege exist during legal consultations?
When the purpose of the consultation is to render legal, not business or social, advice.
127
Who has the power to waive attorney-client privilege?
The client alone because they are the holder of the privilege.
128
Does the privilege continue after the attorney-client relationship has ended?
Yes, even after death of client.
129
Does the client's estate have power to waive privilege after death?
Yes.
130
What are the exceptions to the attorney-client privilege?
1. Future crime or fraud,
2. Client puts legal advice in issue, and
3. Disputes between attorney and client.
131
What are the elements of the physician-patient privilege?
The privilege applies to:
1. confidential communication or information acquired by physician from patient,
2. for the purpose of diagnosis or treatment of medical condition.
Includes medical doctors and psycho-therapists.
132
In federal court, based solely on federal law, does the physician-patient privilege exist?
Not for usual physician-patient confidences, but it does for psychotherapist-patient confidences.
133
What is the exception to the physician-patient privilege?
Privilege does not apply if patient expressly or impliedly puts physical or mental condition in issue.
(Example: Plaintiff sues for physical injury damages, Criminal Defendant asserts insanity defense)
134
What are the elements of spousal immunity?
In criminal cases only, a spouse cannot be compelled to testify against the defendant spouse.
135
Who holds the privilege in spousal immunity?
The witness spouse only.
136
Does spousal immunity survive death or divorce?
No.
137
When does the confidential communications between spouses privilege apply?
In any type of case, a spouse is not required and is not allowed in the absence of consent of the other spouse, to disclose a confidential communication made by one to the other during the marriage.
138
Who holds the privilege in confidential communications between spouses?
Both.
139
Does the confidential communications privilege between spouses survive divorce or death?
Yes.
140
What are the exceptions to the spousal immunity and confidential communications between spouses privilege?
1. Communications or acts in furtherance of future crime or fraud, and
2. Communications or acts destructive of the family unit (spousal/child abuse)
141
When is evidence of subsequent remedial measures inadmissible?
Admissible to show proof of ownership/control (if disputed) or feasibility of safer condition (if disputed)
142
Is evidence of the defendant's character to prove conduct in conformity admissible during the prosecution's case-in-chief?
Never.
143
What is the conditional relevancy standard for offering proof of other bad acts of a defendant?
Prosecution must produce sufficient evidence that a reasonable juror could conclude the defendant committed the other crime.
144
When the prosecution attempts to introduce "MIMIC" evidence, what must the court do before allowing the information into evidence?
The Court must automatically weigh the probative value vs. the prejudice, and give limiting instructions as appropriate
145
Generally, in a civil case alleging sexual assault or child molestation, prior specific sexual misconduct of the defendant is admissible in the ___________ case-in-chief for any relevant purpose, including propensity.
plaintiff's
146
When deciding whether an appropriate excuse under the best evidence rule has been established, the court must be persuaded by _______________________.
preponderance of the evidence
147
If a court is persuaded by preponderance of the evidence that an excuse has been established under the best evidence rule, what may then be admitted?
Secondary evidence.
148
Significant impairment of the right to cross-examination will result, at a minimum, in ______________________.
striking of witness's testimony.
149
With what may a witness’s recollection be refreshed?
Witness may be shown a memorandum (or any other tangible item) to jog his memory if it fails him.
150
Lay witness testimony cannot be based on _______, __________, or otherwise __________ knowledge.
scientific, technical, specialized
151
To be admissible, an expert's opinion must be sufficiently _______.
reliable.
152
Must you immediately confront a witness with a prior inconsistent statement before impeachment?
Not required to immediately confront the witness, but after proof by extrinsic evidence witness must be given an opportunity at some point to return to the stand to explain or deny the prior inconsistent statement.
153
Must confrontation of witness with prior inconsistent statement occur before proof with extrinsic evidence?
No.
154
When is confrontation not required and no opportunity to explain needed if impeaching a witness with a prior inconsistent statement?
If witness is opposing party.
155
Does the court have discretion to exclude evidence of a witness's crimes involving dishonesty?
Court has NO discretion to exclude such convictions.
156
Does the court have discretion to exclude evidence of a witness's prior felony convictions?
Yes the court has discretion to exclude (403 test).
EXCEPT: when witness is the criminal defendant in a criminal case, reverse 403
157
Must the cross examiner have a good faith basis for asking questions about prior bad acts for untruthfulness?
Yes, the cross examiner must have a good faith basis for asking the question
Ability to inquire lies within the court's discretion
158
How may a party rehabilitate a witness's reputation for truthfulness?
How: witness gives reputation or opinion testimony for truthfulness
