EVIDENCE BLL

Question 1

Hearsay Exception - recorded recollection

Answer 1

(1) Witness on the stand cannot remember

(2) Document was made and adopted by witness, so the accuracy can be verified

(3) Such documents can be read into evidence, but CANNOT be an exhibit unless it’s being offered by an adverse part

Question 2

Hearsay - Not hearsay statement

Answer 2

HEARSAY is an out-of-court statement [out of this court] made by the declarant offered to prove the truth of the matter asserted. It is inadmissible unless an exemption/exception applies.
i. Out-of-court statement may be oral or written, includes assertive conduct, excludes depositions
ii. Multiple hearsay (double hearsay) (X said Y said Z): Admissible only if each level of hearsay is admissible. There will be two statements, whether they are written or oral.
iii. The statement is not hearsay where the out of court statement is introduced for other purposes, to show: legally operative facts of independent legal significance (e.g., K terms, defamatory words), effect on listener (notice, knowledge, motive), knowledge of speaker, or state of mind (insanity, belief)

Question 3

Authentication

Answer 3

Real or written evidence requires proof to support a jury finding that it is what the proponent claims
i. Authentication generally requires witness’s first-hand knowledge or familiarity.
ii. Self-authenticating docs: certified public and business records, trade inscriptions, official publications, notarized docs.

Question 4

Judge’s role and the jury’s role

Answer 4

Judge - rule of law and takes in charge of admissibility of evidence
Jury - questions of fact and weight

Judge is not limited by evidence rules when determining preliminary facts (e.g., competency) except privileges

Question 5

Judicial notice

Answer 5

Any evidence not subject to dispute
No opinions

Judge may take judicial notice whether requested or not BUT
i. Judge MUST take judicial notice if a party requests and supplies necessary information

Must - federal or state law
May - foreign law or municipal ordinance

Jury instructions regarding judicial notice
Civil case - jury MUT accept it as conclusive
Criminal case - jury MAY accept it as conclusive

Question 6

Presumption

Answer 6

Conclusion the judge must come to once a party meets its burden

Rebuttable presumption (default)
(1) if the presumption is rebutted with evidence
the jury MAY conclude
(2) if the presumptions is NOT rebutted
the jury MUST conclude

Conclusive presumption
No rebuttal presumption may be offered (usually statute or law)

A mandatory presumption is a type of presumption that is considered to be conclusive. This means that the presumption must be accepted as true unless there is evidence to the contrary. For example, in a criminal trial, there may be a mandatory presumption that a defendant is innocent until proven guilty.If a presumption in a criminal case is considered mandatory, it is subjected to much more stringent constitutional scrutiny. If the presumption shifts the burden of persuasion to the defendant, it will be normally unconstitutional if the presumed fact is an element of the crime.

Question 7

Rule 104. Preliminary Questions

Answer 7

a) In General. The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.

(c) Conducting a Hearing So That the Jury Cannot Hear It. The court must conduct any hearing on a preliminary question so that the jury cannot hear it if:

(1) the hearing involves the admissibility of a confession;

(2) a defendant in a criminal case is a witness and so requests; or

(3) justice so requires.

Question 8

Business Record exception

Answer 8

Record made in the ordinary course of the business
Should be happen all the time, not just a certain period
made at or near the time of event with personal knowledge

(time sheet, invoice…)

Requires authentication of record via custodian testimony or written certification
Excludes reports prepared for litigation

• Absence of entry in records: allowed to prove nonoccurrence of matter if it was regular practice to record all such matters, if witness is familiar + diligent search

Question 9

Former testimony - hearsay exception

Answer 9

unavailable
opponent was party of the former case
and the former case was about the same subject or issue
under the oath
and you have the opportunity to cross-examine that unavialbe witness

Question 10

Spousal testimonial privilege

Answer 10

Privilege not to testify against spouse in criminal cases
Held by witness. Must be married at time of testimony. Covers observations and communications.
보통 증인이 증언을 거절하기 위한 방패로 사용

Question 11

Marital communications privilege

Answer 11

Privilege not to disclose private communication between spouses (civil/crim)
i. Held by both. Covers confidential spousal comm’n from during marriage. Waived by known eavesdroppers.
Survives divorce
(주로 한 쪽이 다른쪽 증언을 못하게 사용)

EXCEPTIONS to both spousal privileges: suits against each other, crime against a spouse or either spouse’s child, joint furtherance of future crime or fraud (spouses are co-Δ)

Question 12

Hearsay exceptions - Statements in Learned Treatises, Periodicals, or Pamphlets. A statement contained in a treatise, periodical, or pamphlet if:

Answer 12

(A) the statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination; and

(B) the publication is established as a reliable authority by the expert’s admission or testimony, by another expert’s testimony, or by judicial notice.

If the court finds a publication to be a reliable authority, then “statements” from it may be read into evidence, but the publication may not be received as an exhibit. Thus, the jury is not allowed to bring learned treatises into the jury room. There is a concern that if juries were allowed unrestricted access to the whole publication, they might rely on parts of the publication that are not germane to the case. The intent of the Rule is that juries need to be guided through the pertinent parts of the publication by the testifying experts.

Question 13

Non-hearsay

Answer 13

admissible as substantive
-admission
–vicarious admission
–adoptive admission

-prior sworn inconsistent statement
-prior consistent statement
-prior identification

Question 14

Non-hearsay (prior identification)

Answer 14

Declarant testifying about an earlier identification
shouyld be subject to cross at trial

Question 15

Non-hearsay (prior SWORN inconsistent statement)

Answer 15

Prior statement by declarant
Made under OATH
Inconsistent with current testimony

OTHERWISE, it’s only acceptable for the impeach purpose

Question 16

Rule 103. Rulings on Evidence (objection)

Answer 16

(a) A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and:

(A) timely objects or moves to strike; and

(B) states the specific ground, unless it was apparent from the context; or

(2) if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.

(b) Not Needing to Renew an Objection or Offer of Proof. Once the court rules definitively on the record — either before or at trial — a party need not renew an objection or offer of proof to preserve a claim of error for appeal.

(c) Court’s Statement About the Ruling; Directing an Offer of Proof. The court may make any statement about the character or form of the evidence, the objection made, and the ruling. The court may direct that an offer of proof be made in question-and-answer form.

(d) To the extent practicable, the court must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means.

(e) A court may take notice of a plain error affecting a substantial right, even if the claim of error was not properly preserved.

Question 17

Timely objection - rule 103

Answer 17

Under Federal Rule of Evidence (FRE) 103, an objection raised only after a witness has left the stand is not timely. Under FRE 103, an objection accompanied by a motion to strike at the first opportunity—even after the inadmissible information has been presented to the jury—may be timely. attorney should state a specific basis for the objection.

Question 18

Impeachment - prior bad act

Answer 18

only happened during cross-examination
no extrinsic evidence is allowed. The questioning attorney must accept W;’s answer.
must be act of lying or dishonesty act

Question 19

Recorded recollection

Answer 19

If a witness makes a tape recording of the facts known to him, the tape recording is probably admissible under the exception. A qualifying recorded recollection may be read into evidence, but may not be offered as an exhibit unless by the opposing party.
A record that is on a matter 1) testifying witness once had personal knowledge of but now cannot recall well enough (refreshing attempted and fails), 2) was made or adopted by W when the matter was fresh in memory, and 3) accurately reflects W’s knowledge
(that the tape itself cannot be submitted to the jury, but the contents may be played out loud and entered into evidence as a substitute for oral testimony.)

Question 20

public records

Answer 20

describes the activities of public agency or official
describes the matter observed in the public duty
factual findings pursuant to the law
made within the scope of the duty and made at or near time of the event

police report - in criminal case, these reports are inadmissible

multiple hearsay issues - the records often involve multiple hearsay issues
the first hearsay should be exemption or exception.
(the note containing the statement)
both are hearsay and the note and statement should satisfy the hearsay requirmets

Question 21

The attorney-client privilege applies only to confidential communications made for the purpose of facilitating legal representation of the client, and the amount the defendant paid in legal fees does not qualify as such a communication. Fee arrangements and payments are generally outside the protection of the attorney-client privilege

Question 22

The work product doctrine provides a qualified immunity for materials prepared by an attorney or client in anticipation of litigation, such as witness statements, investigative reports, or trial memoranda. The amount a client paid to his attorney for legal representation is outside the protection of the work-product doctrine.

Question 23

excited utterance

Answer 23

A declaration made by a declarant during or soon after a startling event is admissible as an exception to the hearsay rule. The declaration must be made under the stress of excitement produced by the startling event and must concern the immediate facts of the startling occurrence. Fed. R. Evid. 803(2).

If the husband made the statement two hours after the accident, so it is very likely that the state of excitement had passed.

Question 24

For a lay witness to properly authenticate handwriting, the witness’s familiarity with the handwriting must have not been acquired solely for purposes of litigation.

Question 25

Rule 605 of the Federal Rules of Evidence (FRE) provides that a “judge presiding at the trial may not testify in that trial as a witness.” Therefore, the judge will not be able to testify as to the defendant’s statements, so long as the judge is still presiding over the defendant’s trial.

Question 26

Federal Rule of Evidence (FRE) 104 says that preliminary questions concerning the admissibility of evidence shall be determined by the court. In making an admissibility determination, the court is not bound by the rules of evidence except those with respect to privileges.

Question 27

Under FRE 612, if a writing is used to refresh a witness’s memory while the witness is testifying, an adverse party has the right to inspect the writing. If the writing was used to refresh the witness’s memory before the witness testified, then the adverse party may inspect the writing “if the court decides that justice requires” it. Therefore, if the teller used the report to fresh her memory before testifying, the court may allow the defendant to examine it. If, however, the teller uses it during her testimony, the court must allow the defendant to inspect it.

Question 28

Evidence of repairs or other precautionary measures made following an injury is inadmissible to prove negligence, culpable conduct, a defect in a product or its design, or a need for a warning or instruction. Fed. R. Evid. 407.

Answer 28

Here, no “measure” was taken at all. The plaintiff wants to introduce a statement, not any action that would have made the injury less likely to occur.