Evidence

Question 1

Judicial Notice

Answer 1

The court will take judicial notice of a typical fact which is true without the formal presentation of evidence.

Question 2

Relevance

Answer 2

Evidence is relevant if it has any tendency to make a material fact more or less likely than it would have been without the evidence.

Question 3

Witness Competency

Answer 3

In order for a witness to testify, he must be competent. Witnesses are presumed competent, but may be disqualified for lack of personal knowledge, lack of memory, or inability to communicate/comprehend

Question 4

Hearsay

Answer 4

An out of court statement offered to prove the truth of the matter asserted.

Question 5

Double Hearsay

Answer 5

When one hearsay statement is contained within another hearsay statement, both statements are excluded unless each statement or the combined statements fall within an exception.

Question 6

Hearsay Exclusions

Answer 6

• Admission by the Opposing Party – FRE 801(d)(2)

* Prior Statements by a Witness – FRE 801(d)(1)

Question 7

Admissions

Answer 7

• A statement made by the opposing party

* Offered against that party

Question 8

Prior Statements by a Witness

Answer 8

A prior statement by a witness is nonhearsay if the witness is presently available to be cross-examined about it and it
• (A) is inconsistent with witness’s in-court testimony and was given under oath in a prior judicial-like proceeding; or
• (B) is consistent with witness’s in-court testimony and rebuts a charge against this witness of recent fabrication, improper influence, or motive; or
• (C) identifies someone after having seen that person.

Question 9

Hearsay Exceptions (Declarant Must Be Unavailable)

Answer 9

1. Former Testimony
2. Declaration Against Interest
3. Dying Declaration
4. Statement of Family History
5. Forfeiture by Flight of a Witness

Question 10

Hearsay Exceptions (Declarant’s Availability Does Not Matter)

Answer 10

1. Present Physical Condition
2. Present Mental State
3. Statement For Treatment or Diagnosis
4. Excited Utterance
5. Present Sense Impression

Question 11

Relevance (General Exclusion)

Answer 11

• FRE 403: Otherwise relevant evidence may be excluded if its: • Probative value is
• Substantially outweighed by
• Danger of 
➢Unfair prejudice
➢Waste of time 
➢Confusion

Question 12

Relevance (Specific Exclusions)

Answer 12

• Character-related evidence
• Habit and Custom
• Subsequent Remedial Measures
• Payment of Medical and Related Expenses
• Settlements and Plea Bargains
• Liability Insurance

Question 13

Authentication of Writings by Non-Expert

Answer 13

FRE 901(b)(2): Non-expert opinion on genuineness of handwriting must be based on prior familiarity with handwriting and not on information acquired for purposes of the litigation.

Question 14

Self-Authentication

Answer 14

FRE 902: Contains a list of twelve categories of self-authenticating documents as to which no other evidence of genuineness is necessary to establish authenticity. Among these are
• Official publications by public agencies • Newspapers and periodicals
• Certified copies of public records

Question 15

Best Evidence Rule

Answer 15

FRE 1002: To prove the content of a writing, recording (audio or video), or photo, the proponent must offer the original, subject to various exceptions.

Question 16

Best Evidence Rule: Exceptions

Answer 16

FRE 1003: Original need not be produced if
• A duplicate is offered and
➢no general issue is raised as to the authenticity of the original or
➢using a duplicate instead of the original would not be unfair

Question 17

Summaries of Voluminous Writings

Answer 17

FRE 1006: A summary or chart, rather than the original, can be offered to prove the contents of a writing, recording, or photo when
• that document is voluminous and
• the original cannot be conveniently examined in court and
• the original/duplicate is made available to the opponent(s) for inspection, copying, or both and
• witness testifies to accuracy of summary/chart

Question 18

Attorney-Client Privilege

Answer 18

• Privilege is held by the client
• It can be asserted to
• Justify the client’s refusal to disclose; or • Prevent the attorney’s disclosure.
• It covers communications • Between client and lawyer
• Intended to be confidential
• Made to facilitate giving legal service to client
• The privilege does not apply if the contents relate to future commission of a crime or fraud; or
• Where the communication is relevant to an issue of the lawyer’s breach of duty, e.g., malpractice case.
• The client’s death does not terminate the privilege
• Except in will contests

Question 19

Physician-Patient Privilege

Answer 19

• None recognized at federal common law

* So unavailable in criminal and federal question civil cases • Except for statements to psychotherapists

Question 20

Marital Privilege

Answer 20

Adverse Testimony Privilege:
• Spouse cannot be compelled to testify against interest of spouse
• Federal common law; privilege held only by testifying spouse, not party spouse

Confidential Communications:
• Assertable by either spouse
• Made while the parties to the communication were married (subsequent divorce irrelevant)

Question 21

Character Evidence

Answer 21

The General Rule – FRE 404(a)
• Evidence to prove someone’s character or character trait is inadmissible to prove that the person acted in conformity with that character in a particular situation
• Applies in both civil and criminal cases

Question 22

Character of a Criminal Defendant

Answer 22

FRE 404(a)(1): Character of a criminal defendant is admissible if:
• The character trait is pertinent to the crime charged; and
➢The evidence is offered by the defendant; or
➢The evidence is offered by the prosecution
▪ After the defendant has offered such evidence; or
▪ After the defendant has offered admissible evidence of the alleged
victim’s character.
▪ For some “other reason” – MIMIC
▪ Character is in issue

Question 23

Character of Alleged Victim

Answer 23

FRE 404(a)(2): Character of victim admissible if
• Trait is pertinent and
➢It is offered by the defendant; or
➢It is offered by the prosecution after the defendant has already done so;
▪ OR
• Trait of peacefulness
➢Offered by prosecution and only
➢To rebut evidence that victim was first aggressor.
• Both subject to exceptions for sex offense cases

Question 24

Proving Character: Past Acts

Answer 24

• FRE 404(b): Past acts evidence is inadmissible to prove character to show conformity.
But past acts evidence is admissible to prove something other than character – such as motive, identify, lack of mistake, intent, modus operandi, “MIMIC”
• FRE 405(b): Past acts evidence also is admissible when character is in issue (not to prove conformity.

Question 25

Proving Character: Opinion and Reputation

Answer 25

• FRE 405: There are two always permissible methods of proving character: • Reputation testimony • Opinion testimony BUT inquiry into relevant past acts is admissible during cross-examination of a reputation or opinion witness. • Even for rep & opinion, def must open the door!

Question 26

Witness: Direct and Cross

Answer 26

• FRE 611(c): Leading Questions – Questions that suggest to witness the questioner’s desired answer are ordinarily limited to: • Cross-examination (unless witness is biased in favor of cross-examiner); or • Direct examination of a ➢Hostile witness; ➢Adverse party; or ➢Witness identified with adverse party. • FRE 611(b) Scope of Cross-Examination: • Generally limited to ➢Scope of direct examination; and ➢Credibility of witness. • Within discretion of trial judge to expand

Question 27

Non-Expert Witness Testimony (Lay Opinion)

Answer 27

• First-hand knowledge required • Opinions allowed as to: • FRE 701: opinions or inferences that are ➢Rationally based on perceptions; and ➢That are helpful to the jury; and ➢Not based on specialized knowledge. • FRE 405: to prove character when evidence of character is admissible.

Question 28

Expert Witness Testimony

Answer 28

• FRE 702: Admissible if: • Specialized knowledge helps jury understand evidence or determine a factual issue; and • Witness is qualified as an expert; and • Testimony is factually based; and • Testimony is based on reliable theories (“good” vs. “junk” science); and • Witness reliably applied theories to facts. • FRE 703: Expert can base testimony on • Facts or data obtained from either ➢First-hand knowledge; or ➢Observation of other witnesses and evidence; or ➢A hypothetical posed by counsel. • Revealing basis of opinion: • FRE 703: Opinion can be based on otherwise inadmissible evidence if of the type reasonably relied upon by experts in the field. BUT it cannot be disclosed to jury (by proponent or expert) unless ➢court finds helpfulness to jury substantially outweighs prejudicial effect or ➢Adversary inquiries into it on cross-examination. • FRE 705: Expert not required to explain basis of opinion on direct but can be asked about underlying facts or data on cross.

Question 29

Witness: Impeachment

Answer 29

By offering evidence • Of Character for untruthfulness • Of a prior inconsistent statement • Of bias • Of defective capacity – mental or sensory • That contradicts the substance of the witness’s testimony • FRE allow impeachment of own witness

Question 30

Impeachment: Character for Untruthfulness

Answer 30

* Prior Criminal Conviction * Other Prior Acts * Opinion and Reputation

Question 31

Impeachment: Prior Conviction

Answer 31

Under FRE 609(a)(2), conviction of a crime, an element of which is dishonesty or false statement, is always admissible to impeach the character of a witness. • FRE 609(b): no conviction more than ten years old is admissible for impeachment unless court funds probative value substantially outweighs prejudicial effect. • FRE 609(a)(1): • Non-crimen falsi convictions • Of a witness who is not the accused is admissible • But only if it is a felony ➢UNLESS, per FRE 403, the trial judge determines that its prejudicial impact substantially outweighs its probative value. • FRE 609(a)(1): Admit a • Non-crimen falsi conviction • Of a defendant BUT ONLY IF ➢it a felony AND ➢the trial judge determines that its probative value substantially outweighs its prejudicial effect on the accused.

Question 32

Impeachment: Past Acts

Answer 32

• FRE 405(a): General rule prohibits proof of character through past acts evidence; BUT • Rule 608(b): The trial judge has discretion to admit evidence of a witness’s past acts if the evidence is offered during cross-examination of that witness and it goes to that witness’s truthful or untruthful character. • FRE 608(b): A witness’s character for untruthfulness cannot be impeached through extrinsic evidence of her past bad acts not amounting to a conviction.

Question 33

Impeachment: Opinion and Reputation

Answer 33

* FRE 608(a): Evidence of a witness’s credibility can be put in issue BUT ONLY * through opinion or reputation evidence * of character trait for truthfulness or untruthfulness * and if for truthfulness, only after reputation or opinion evidence of this witness’s character for untruthfulness has been offered

Question 34

Impeachment: Prior Inconsistent Statement

Answer 34

* FRE 613(b): Even if the proof comes through extrinsic evidence, it is admissible as long as that witness remains available and * Is given the opportunity to explain or deny that prior inconsistent statement, and * The party who called that witness is given a chance to question its witness about the prior statement.

Question 35

Impeachment: Bias

Answer 35

Any witness can be impeached by evidence demonstrating that witness is biased. There is no FRE dealing with bias and so no limitation concerning intrinsic or extrinsic evidence.