Evidence

Question 1

Relevance Definition

Answer 1

Any tendency to make a fact of consequence more or less probable than without the evidence

• 2 components: Materiality+Probativeness

Question 2

R403 Exclusion

Answer 2

Court may exclude admissible evidence if probative value is substantially outweighed by 1 or more pragmatic considerations:

• Danger of unfair prejudice (jury deciding on emotion)
• Confusion of the issues (create some side issue)
• Misleading the jury (undue weight, like experts)
• Undue delay/waste of time
• Unduly cumulative
• Similar occurrences (see separate card)

Question 3

R403 Exclusion - Similar Occurrences

Answer 3

May exclude evidence involving some time, event, or person other than that at issue. BUT might be admissible if:

• Cause of injury is at issue and ev concerns P’s accident history
• Ev is about similar accident caused by the same instrumentality or condition, occurring under substantially similar conditions, IF: (1) existence of dangerous condition, (2) causation, (3) prior notice to D
• Intent is at issue and ev provides inference of later intent
• Ev shows value of comparable sales of property
• Habit ev, assuming sufficient (1) frequency, and (2) particularity of circumstances
• Ev shows industrial custom as standard of care

Question 4

Public Policy Exclusions

Answer 4

• Liability insurance - BUT allowed for:
  (a) Proof of ownership or control of an instrumentality or location
  (b) Witness impeachment on the basis of bias
• Subsequent remedial measures - BUT allowed for:
  (a) Proof of ownership or control
  (b) Feasibility of a safer condition
• Settlements in civil cases (including offers/negotiations/statements)
• Plea discussions in crim cases:
  (a) Offers to plead guilty & withdrawn guilty please - EXCLUDED in present crim or subsequent civ
  (b) Nolo contendere - EXCLUDED in subsequent civil
• Offers to pay medical/hospital expenses

Question 5

Character Evidence - Overview

Answer 5

Evidence showing a person’s general propensity or disposition

• Potential purposes:
  (a) Character is a material element in the case (never for crimes)
  (b) Prove conduct in conformity with the character on a particular occasion
  (c) Impeach a witness on credibility/truthfulness
• NB: Prior specific sexual misconduct admissible in civ and crim for propensity to commit sex crimes

Question 6

Character Evidence - Crim - D’s Character

Answer 6

• Inadmissible to prove conduct in conformity during P’s case in chief
• D can introduce good CE by ~reputation or opinion~ testimony of ~witness~
• If D introduces, opens door to P rebuttal, in 2 ways:
  (a) Cross-exam D’s witness with “Have you heard” and “Did you know” Qs about acts of D
  (b) Calling its own reputation/opinion witness

Question 7

Character Evidence - Crim - Victim’s Character (Self-Defense)

Answer 7

• D can introduce bad CE by ~reputation or opinion~ testimony of ~witness~ to prove victim’s conduct in conformity/aggression
• If D introduces, opens the door, ~both as to victim AND D~
• D can’t testify to V’s reputation UNLESS to prove own state of mind

Question 8

Character Evidence - Crim - D’s Previous Crimes/Acts

Answer 8

• Can be admitted NOT for character, but for “MIMIC”:
  (a) Motive
  (b) Intent
  (c) Mistake/accident (or absence)
  (d) Identity
  (e) Common scheme or plan
• Procedural aspects:
  (a) Prove other acts through conviction records or other evidence on conditional relevancy (NOT BARD) standard
  (b) Upon D’s request, P must give pre-trial notice of intent to introduce
  (c) If admitted, limiting instructions

Question 9

Character Evidence - Civil

Answer 9

• Generally inadmissible to prove conduct in conformity
• Admissible where character is an essential/material element:
  (a) Can use reputation/opinion testimony AND specific acts
  (b) E.g. negligent hiring/entrustment, defamation where truth is a defense, child custody cases
• Admissible for MIMIC reasons

Question 10

Writings - Authentication

Answer 10

• Standard - Conditional relevancy (sufficient evidence from which a juror could conclude authenticity)
• Methods of authentication:
  (a) Witness with personal knowledge
  (b) Proof of handwriting, either by lay witness who obtained familiarity in normal course of affairs, expert witness, or jury
  (c) Ancient document rule - (1) At least 20 yo, (2) Facially free of suspicion, AND (3) Found in a place of natural custody
  (d) Solicited reply doctrine - Writing received in response to prior communication to the alleged author
  (e) Photos - Witness that it’s a fair and accurate representation
• Self-authenticating documents:
  (a) Official publications
  (b) Certified copies of public or private records on file in public office
  (c) Newspapers/periodicals
  (d) Trade inscriptions/labels
  (e) Notarized docs
  (f) Commercial paper
  (g) Certified business records (w reasonable notice to other party)

Question 11

Writings - Best Evidence Rule

Answer 11

To prove the contents of a writing, you must produce the original writing

• Applicable settings to prove contents:
  (a) Writing is a legally operative document
  (b) Witness is testifying to facts she learned ~solely~ from writing
• Definition of original writing:
  (a) Writing itself and any counterpart intended to have the same effect (printouts)
  (b) Duplicates produced by accurate mechanical means
• Exceptions:
  (a) Original unavailable (lost/can’t be found w due diligence/destroyed without bad faith/can’t be obtained w legal process)
  (b) Voluminous records - Can be presented in a summary/chart, assuming originals are available
  (c) Collateral (not important enough) writings

Question 12

Witnesses - Competency

Answer 12

• 2 requirements:
  (1) Personal knowledge
  (2) Oath
• Dead Man’s Statute - In civil, interested party can’t testify in own interest against estate of a decedent concerning comms/relationship bw decedent and witness

Question 13

Witnesses - Leading Questions

Answer 13

• Definition - Suggests the answer
• Allowed on cross, NOT direct
• Exceptions when allowed on direct:
  (a) Preliminary/introductory matters
  (b) Youthful or forgetful witness
  (c) Hostile witness
  (d) Witness under control (e.g. employee) of adverse party

Question 14

Witnesses - Cross-examination

Answer 14

• Can cross any opposing witness
• Proper subject matter:
  (a) Matters within the scope of direct
  (b) Matters testing credibility for impeachment

Question 15

Witnesses - Writings in Aid

Answer 15

• Generally must testify from recollection, BUT can be used in below.
• To refresh recollection
  (a) Adversary can inspect refreshers, use it on cross, and offer it into evidence IF used on stand (otherwise, judge’s discretion)
• As a substitute for recollection (i.e. recorded recollection; hearsay exception).
  (a) Requirements:
• • Have to show first to refresh and have it fail
• • Witness must’ve had personal knowledge at the time
• • Writing must’ve been made or adopted by witness
• • Making/adoption occurred when fresh in witness’s memory
• • Witness must vouch for it
    (b) Adversary can inspect, use on cross, and offer

Question 16

Witnesses - Opinion Testimony

Answer 16

• Lay opinions - Admissible if: (1) rationally based on witness’s perception, and (2) Helpful to the jury in deciding a fact (e.g drunk/sober, vehicle speed, writing)
• Expert opinions - Requirements:
  (1) Qualified - Based on education/experience/combo
  (2) Project subject matter - Scientific, technical, or other specialized info
  (3) Proper basis for opinion/permissible data sources
  (4) Reasonable degree of probability/certainty
  (5) Reliable (Daubert) - Testing of principles/methodology, rate of error, acceptance in discipline, peer review/publication
• Learned treatises can aid experts:
  (a) On direct, if established as reliable authority
  (b) On cross to impeach/contradict
• Ultimate issues - Opinion CAN embrace ultimate jury issue, unless in crim cases expert gives direct opinion on D’s mental state

Question 17

Impeachment - Methods

Answer 17

• Prior inconsistent statements
  (a) EE? - N/A
  (b) Con? - Flexible timing, but witness must be allowed to explain/deny PIS; EXCEPTION - target witness IS opposing party
• Bias, interest, and motive to misrepresent
  (a) EE? - Yes, discretion
  (b) Con? - Discretion
• Sensory deficiencies
  (a) EE? - Yes
  (b) Con? - No
• Contradiction (on cross w direct)
  (a) EE? - No if fact at issue is collateral
  (b) Con? - N/A
• Bad reputation/opinion about witness’s character for truthfulness
  (a) EE? - Yes (other witness giving reputation/opinion)
  (b) Con? - No
• Crim convictions: (1) Crimes involving dishonesty/false statement - Yes; (2) Felonies - Discretion (probative value MUST outweigh); (3) Misdemeanors - No
  (a) Later of conviction/prison release must be within 10 years
  (b) Pardons/annulments make conviction inadmissible IF: (1) Based on finding of rehabilitation, AND (2) No subsequent felony convictions
  (b) Con? - No
• Prior bad acts involving untruthfulness
  (a) EE? - No (also can’t ask if arrested/charged - undue prejudice)
  (b) Con? - YES, only way

Question 18

Impeachment - Rehabiliation

Answer 18

• After a credibility attack, not before (bolstering)
• Can show good character for truthfulness via opinion/reputation witness
• Prior consistent statements:
  (a) When witness charged w fabrication based on recent motive/improper influence, and PCS was made BEFORE motive arose
  (b) ALSO admissible as SUBSTANTIVE ev (hearsay exclusion)

Question 19

Hearsay - Overview

Answer 19

• Definition: (1) Out-of-court statement of person, oral or written, that (2) is offered to prove the truth of the matter asserted
  (a) Out-of-court = Anywhere except witness stand or in the current trial/proceeding
• Inadmissible unless an exception applies
• For nested hearsay, admission of entirety requires exception for EACH layer

Question 20

Hearsay - Don’t Meet Definition

Answer 20

• Things not offered for truth of the matter asserted, e.g.:
  (a) Statement offered to show it was made/spoken
  (b) Verbal acts or legally operative words (e.g. of contract acceptance, gift, bribe, perjury, fraud, defamation)
  (c) Statement offered to show effect on listener/reader
  (d) Statement offered to show circumstantial evidence of declarant’s state of mind

Question 21

Hearsay - Meet Definition, but Not

Answer 21

• Certain prior statements of testifying witnesses:
  (a) Prior statement of identification
  (b) PIS, made under oath/in other proceeding
  (c) PCS, offered to rehabilitate
• Opposing party’s statements:
  (a) Any statement made by opposing party is admissible against that party
  (b) Includes adoptive statements (not objecting to things ppl would object to)
  (c) Vicarious opposing party statements (e.g. statements by agent/employee admissible against principal/employer if made in scope of relationship)

Question 22

Hearsay - Exceptions - Declarant Unavailable

Answer 22

• Former testimony - If at a former proceeding/deposition with opportunity to cross/develop the issue; issue must be essentially the same
• Statements against interest - Statements against own pecuniary, proprietary, and penal interests
  (a) In crim cases - Statements against penal interests must be corroborated
• Dying declarations - (1) If made under a belief of certain and impending death, and (2) concerning cause or circumstances of their death
  (a) In crim, only available in homicide cases

Question 23

Hearsay - Exceptions - Declarant (un)Available

Answer 23

• Excited utterance - Statement concerning startling event made while declarant is still under stress of excitement
• Present-sense impression - Description of event while it’s occurring or immediately thereafter
• Then-existing mental or physical condition - Contemporaneous statement about declarant’s own mental/physical state (including intent to do future things)
• Statement for purposes of medical diagnosis or treatment - Made to anyone concerning past or present symptoms, or general cause of condition, for purpose of treatment/diagnosis
• Business records - (1) Records of any type of bus/org made in regular course of business, (2) Business regularly keeps such records, (3) Made at or near time of event/condition, (4) Statements made by kind of ppl who have business duty to report
• Public records - Records from a public office/agency that set forth activities of office/agency, or matters observed pursuant to a legal duty, or findings of fact/opinion resulting from an investigation authorized by law
• Witness recollections and learned treatises for witnesses

Question 24

Hearsay - Confrontation

Answer 24

• 6A prohibits testimonial/sworn hearsay against crim D if declarant is unavailable and there’s been no opportunity for cross

Question 25

Privileges - Choice of Law

Answer 25

• FRE has no privileges; state law (diversity jx) or federal common law (fed q jx) control
• Only time it matters - Physician/patient privilege - Fed CL recognizes it for psychotherapists but NOT normal medical professionals

Question 26

Privileges - Attorney-Client

Answer 26

• Confidential communications bw attorney and client or either’s representative made during legal consultation unless privilege is waived or there’s an exception.
  (a) “Confidential” - Client intends confidentiality
  (b) “Communications” - Just comms themselves, not underlying info, pre-existing docs, or physical evidence
  (c) “Attorney” - Member of the bar or person client reasonably believes to be a member of the bar; includes attorney’s representatives/staff
  (d) “Client” - Includes a person seeking to become a client
  (e) Purpose must be to obtain or render legal service
• Waiver - Disclosure to a third party
• Exceptions:
  (a) Future crime or fraud
  (b) Client putting legal advice from an attorney into issue
  (c) Dispute bw attorney and client

Question 27

Privileges - Physician-Patient

Answer 27

• Confidential comms or information acquired by physician from patient for diagnosis/treatment of medical condition, including mental/emotional illness
• Exception - Patient expressly or impliedly puts physical/mental condition in issue

Question 28

Privileges - Spousal Privileges

Answer 28

• Immunity - In CRIM cases only, spouse can’t be compelled to testify against D spouse
  (a) Witness spouse holds privilege, NOT D spouse (i.e. witness can testify if wants)
  (b) Doesn’t survive divorce
• Confidential communications - In ANY case, spouse is not required to, and not allowed to without permission, disclose confidential communications
  (a) Held by both spouses (need permission)
  (b) Survives divorce
• Exceptions:
  (a) Future crime or fraud
  (b) Communications or acts destructive of family unit (e.g. abuse)

Question 29

Procedural Issues

Answer 29

• Judicial notice
  (a) Civil - Court MUST instruct jury to accept fact as conclusive
  (b) Crim - Court MUST instruct jury that it may, but is not required to, accept fact as conclusive
• Presumptions can be destroyed:
  (a) In civil - Adversary producing rebutting evidence
  (b) In crim - Prosecution producing rebutting evidence; burden ALWAYS on them