Evidence

Question 1

relevance standard

Answer 1

if it tends to make the existence of any fact o f consequence more or less probable than without the evidence

Question 2

character evidence is admissible when it is offered as

Answer 2

the defendant’s reputation in the community

Question 3

once defendant has entered a reputation witness, the state may ask

Answer 3

whether the reputation witness has heard about specific incidents/actions by defendant

if the witness has not heard of these, state may not bring in extrinsic evidence to show

Question 4

victim’s character

Answer 4

defendant may show

(1) reputation evidence of pertinent trait of victim’s character AND
(2) evidence of prior threats by victim against defendant

Question 5

Did the D initiate a conversation about his character by offering reputation or opinion character evidence about himself?

Answer 5

Then, prosecution can rebut using specific instances of character evidence immediately

This can also be triggered by D saying that victim had a certain character (usually violence in a self-defense case)

Question 6

Is the character evidence being introduced to try to impeach the witness?

Answer 6

You can impeach the witness without implicating their character =

i. Witness is mistaken
ii. Witness is lying right now, not that they’re a liar generally

Must say that witness is liar by opinion or reputation, not specific instances of lying

2. But on cross, party may ask about specific instances if they are probative of character for truthfulness of liar-ness

Question 7

Past convictions admissible to impeach a witness?

Answer 7

If the conviction was a crime of dishonesty (think fraud), then conviction will always be admissible

b. If the crime was punishable by more than 1 year in prison – then admissible if just a witness; if a criminal D, then admissible subject to 403 balancing
c. If more than 10 years since conviction or release, only admissible if probative value substantially outweighs prejudicial effect to party (not witness)

Question 8

Is there a rape?

Answer 8

If it’s a rape prosecution or a related civil case, then other sexual behavior of victim is not admissible nor is evidence offered to prove a victim’s sexual predisposition

b. Exceptions = if D is accused rapist, then evidence of specific instances of sexual behavior may be admitted to say that source of semen was not D; specific instances of sexual behavior with D allowed to prove consent defense; and if exclusion would violate Due Process Clause

Question 9

Hearsay

Answer 9

an out of court statement that a party offers to prove the truth of the matter asserted in the statement by the declarant

Question 10

test for hearsay

Answer 10

Is it being offered for the truth of the mater asserted?

b. Did the declarant assert (out of court) that some thing was true? Ie, did she mean to communicate a fact?

Question 11

1. To prove the statement’s impact on someone who heart it
2. To prove a legal right or duty triggered by, or offense caused by, uttering the statement
3. To impeach the declarant’s later, in-court testimony
4. Nonassertive words (ie, ouch)
5. Words offered to prove something other than what they assert
6. Assertions offered as circumstantial proof of knowledge

Answer 11

not hearsay

because not uses for truth of matter asserted

Question 12

Exceptions to hearsay rules

Answer 12

1. Declarant-witness’s prior statements
2. Opposing parties’ statements
3. Exceptions applicable regardless of declarant’s availability (ie, so reliable that we want them more than the witness
4. Exceptions applicable only when declarant is unavailable

NOTE; Rationales for exceptions = NECESSITY (cant get info any other way ) and TRUSTWORTHINESS (we believe it’s more reliable than usual out of court statements)

Question 13

expert testimony rules

Answer 13

Proper qualifications

o Proper topic

o Sufficient basis

o Relevant and reliable methods

o Rule 403 challenge

· Experts cant testify to matters of common knowledge

· Experts may testify to opinion on ultimate issues

Question 14

conditional relevance rule

Answer 14

if you want to introduce something, it may not itself show its relevance, but you may be able to establish relevance through a second finding

Question 15

The best evidence rule applies:

Answer 15

where (i) the writing is a legally operative or dispositive instrument, or (ii) the knowledge of a witness concerning a fact results from having read it in the document.

The best evidence rule does not apply (i) where the fact to be proved has an existence independent of any writing, (ii) where the writing is of minor importance to the matter in controversy, or (iii) to summaries of voluminous records.

Question 16

The testimony of a now-unavailable witness from a different proceeding (or another hearing the same proceeding) may be admissible under the former testimony hearsay exception when:

Answer 16

is admissible if:

(i) the party against whom the testimony is offered or (in a civil case) a party with a similar interest was a party in the former action (the parties need not have been identical);
(ii) the former action involved the same subject matter; and
(iii) the party against whom the testimony is offered had an opportunity at the prior proceeding to develop the declarant’s testimony (i.e., by direct, cross, or redirect examination).

Question 17

The testimonial spousal privilege belongs to ____________________; the marital communications privilege belongs to ____________________.

Answer 17

The witness-spouse; both spouses.

Question 18

In a criminal case, a witness may be impeached with a prior conviction:

Answer 18

Regardless of the nature of the crime or when it occurred.

Question 19

prior testimonial evidence MAY be admitted only when

Answer 19

• witness is unavailable AND

- defendant had opportunity to cross-examine the witness when evidence given

Question 20

incarceration for nonpayment of fines is ilegal when

Answer 20

(1) if the defendant could pay the fine, the fine is an alternative to incarceration (ie, $30 or 30 days)
(2) when max period of confinement is exceeded solely because of unpaid costs
(3) when parole is revoked solely for failure to pay a fine without a determination that defendant was actually capable of payment