Evidence (Final w/ Critical Pass)

Question 1

(1) What is the scope of the FRE?

(2) What are some examples where FRE does not apply?

Answer 1

(1) FRE applies to all criminal and civil cases including bankruptcy proceedings

(2) FRE does not apply to preliminary determinations by the judge, grand jury, probation/sentencing hearings, bail hearings, or other proceedings exempted by Congress

Question 2

What is the appellate review process for the admittance/exclusion of evidence?

Answer 2

Courts will look to whether there was (1) prejudical error and (2) whether a proper objection or offer of proof was made

Prejudicial error: Goes beyond harmless error; had the evidence been admitted/excluded, there would have been a different verdict

Proper Objection (exclusion): Should be timely (before witness answers question) and reason stated for objection and evidence being excluded; if not timely, attorney can make motion to strike or judge can reverse if it is obvious that there was a miscarriage of justice

Offer of Proof (admittance): Outside of the jury’s presence, attorney gives an explanation why the evidence should be admitted through their own statements, documents, witness testimony, or affidavit

Question 3

What is the Preliminary Questions process under FRE 104?

Answer 3

Under FRE 104, the proponet has the burden of proof to show why evidence is admissible/inadmissible.

Judge then makes determination through PPOE if the evidence is admissible/inadmissible (evidence is more likely than not admissible or >50%)

Question 4

What is Conditional Relevance?

Answer 4

Evidence is conditionally relevant if it depends on the existence of another fact.

Judge may provisionally admit the evidence on the assumption that a foundation will be laid later for the fact if a reasonable jury could make a factual determination based on the evidence before it

Question 5

(1) What is a Limiting Instruction?

(2) Procedure of Limiting Instruction?

Answer 5

(1) LI is where a judge informs the jury that they should consider a piece of evidence for a specific purpose and avoid considering it for any other purpose.

(2) Procedure: Must be requested by the party; judge then explains to jury what purpose the evidence should be considered for and that it should not be considered for any other purpose

Question 6

What is the Doctrine of Completeness? Policy?

Answer 6

(1) If one party offers a writing or recored statement or part thereof;
(2) The adverse party may offer a different part of that same writing or recored statement or a completely different writing/recorded statement if;
(3) The judge determines that in fairness the evidence ought to be considered at the same time

Policy: We do not want to mislead the jury about contents of writing/recordings so they don’t take things out of context

Question 7

What is Judicial Notice?

Answer 7

JN is a substitute for evidence where courts will accept certain facts as true without the formal presentation of evidence. Court’s make take JN on their own or upon formal request from either party.

Question 8

(1) What type of facts can courts take JN of?

(2) What type of facts can courts not take JN of?

Answer 8

(1) Adjudicative Facts: (i) Those generally known within the territorial jurisdiction, also known as a notorious fact and (ii) facts that are capable of verification by a source that is not subject to reasonable dispute, also known as a manifest fact

Question 9

What is a Legislative Fact?

Answer 9

Legislative facts are facts that courts cannot take JN of. These are typically used by courts to make policy determinations or for statutory interpretation.

Question 10

When MAY the court take JN?

Answer 10

Courts MAY take JN with/without request from parties on matters regarding:
* Local geography
* Laws of foreign nations
* Municipal agencies
* Regulations of private agencies

Question 11

When MUST the court take JN?

Answer 11

Courts MUST take JN upon timely request from either party if they provide sufficient information to the fact that they want to be judicially noticed

Courts MUST take JN REGARDLESS OF REQUEST on matters regarding (1) federal/state law and (2) indisputable facts and scientific propositions

Question 12

When is the jury instruction process for JN?

Answer 12

(1) In CIVIL CASES, jury MUST take judicially noticed fact as conclusive

(2) In CRIMINAL CASES, courts MAY take judicially noticed fact as conclusive

Question 13

Can a presiding judge testify at their own trial?

Answer 13

No. A presiding judge is never permitted to testify at their own trial.

Question 14

Can judges use their own general knowledge to take judicial notice?

Answer 14

No. Courts cannot base judicial notice on something that they have personal knowledge about but the territorial community may not know generally.

Question 15

What is the test for Relevance Evidence?

Answer 15

Under FRE 401, evidence is relevant if it meet the two-pronged test of Logical Relevance and Legal Relevance.

Logical Relevance, also known as the PV Test, is whether the evidence has a tendency to make a fact more or less probable than it would be without the evidence.

Legal Relevance is whether the evidence legally relates to a fact of consequence in the matter.

Question 16

When is relevant evidence preempted?

Answer 16

Under FRE 402, relevant evidnce is admissible unless it is preempeted by the (1) US Constitution, (2) federal statute, (3) FRE, or (4) any other rule articulated by SCOTUS.

Question 17

When is relevant evidence excluded?

Answer 17

Under FRE 403, relevant evidence can be excluded at the discretion of the court if its PV is substantially outweighed by the danger of any of the counterweights enumated in 403 including unfair prejudice, confusion of the issues, misleading the jury, undue delay, or waste of time

Question 18

What is an evidentiary hearing?

Answer 18

Courts will conduct a hearing on whether evidence is admissible or inadmissible. This must be done outside the presence of the jury.

Question 19

What is Unfair Prejudice for purposes of FRE 403?

Answer 19

Unfair Prejudice is the type of evidence that has a tendency to give unfair or preemptive weight to the jury. This is typically seen when the evidence being put forth could be emotionally disturbing to the jury or confusing.

Question 20

What are the 403 counterweights?

Answer 20

CUMWUD
Confusing the issues
Undue delay
Misleading the jury
Wasting time
Unduly cumulative
Danger of unfair prejudice

Question 21

What is a Subsequent Remedial Measure?

Answer 21

Evidence of repair or other remedial measures taken are not admissible to show negligence, fault, defect, or inadequate warnings.

SRM are admissible to show ownership, control, or if there is a dispute of feaseability.

Question 22

What is a Compromise Offer or Negotiation?

Answer 22

Evidence of an offer to settle a claim and any accompanying statements are inadmissible to prove or disprove the validity or amount of a disputed claim.

May be introduced to show: bias, negating a contention or undue delay, or providing an effort to obstruct a criminal investigation

Question 23

What is an Offer to Pay Medical or Similar Expenses?

Answer 23

Offers to pay medical, hospital, or other related expenses are not admissible to show liability for the injury.

Accompanying statements are admissible, unlike compromise offers.

Question 24

What is the policy exclusionof Pleas, Plea Discussions, and Related Statements?

Answer 24

In a civil or criminal case evidence of a (1) withdrawn guilty plea, (2) no-contest plea, (3) statements from proceedings that resulted in a withdrawn guilty plea or no-contest plea, or (4) statements made during a plea discussions with the prosecuting attorney that did not result in a guilty plea or did result in a withdrawn guilty plea are not admissible for any purpose against the ∆ made/participated in the plea/plea discussions.

Exception: Perjury trials or statement of completeness (if another statement is made during the same plea negotiations or proceeding was introduced and fairness dictates that the jury should hear them together

Question 25

What is the policy exclusion for liability insurance?

Answer 25

Evidence that a party was covered or not covered by liability insurance is not admissible to show that they acted **negligently, wrongfully, or the ability to pay damages.** Pretty much admissible for everything else (e.g., bias, ownership, control, etc.)

Question 26

How does the court deal with prior similar occurances?

Answer 26

More often than not inadmissible because they are irrelevant or unfairly prejudicial. Could be admissible for other purposes: intent, absence of mistake, value, industry custom, etc.

Question 27

What is Habit or Routine Evidence?

Answer 27

A person's habit may be relevant and admissible to show that the person acted in conformity with that habit on a given occasion. Must be: (1) Highly specific and (2) frequently repeated; look for regular or instinctive conduct Example: Evidence that a person habitually goes down a particular stairwell two steps at a time could be admissible as circumstantial evidence that she did so at that time.

Question 28

What is the deal with Character Evidence in Civil Cases?

Answer 28

Evidence of a person's character is often inadmissible in a civil case to show that they acted in conformity with their character on a specific occasion. Exceptions: (1)** Character is at issue**: essential element of a claim/defense (e.g., defamation) [opinion/reputation/specific acts] (2) Prior acts of sexual assault or child molestation in cases for similar clases [π must disclose intent to offer at least 15 days before trial]

Question 29

What is the deal with Character Evidence of ∆ in a Criminal Case?

Answer 29

**Mercy Rule** (1) In a **criminal case**; (2) The ∆ may provide evidence of a character trait; (3) that is **pertinent** to the crime at issue (4) But once the ∆ opens the door to this evidence on their character trait, the prosecution can rebut it with their own witness testifying to ∆'s bad character (limited to the trait in question) or cross-examining the ∆'s witness with knowledge of specific instances of ∆'s misconduct or prior arrests

Question 30

What the deal with the Victim's Character in Criminal Cases?

Answer 30

∆ may introduce opinion/reputation evidence of victim's character when the asserted defense makes it relevant. Once ∆ does, prosecution may rebut and offer evidence of the same character trait. Example: ∆ is on trial for murder and claimed self-defense; introduced evidence to show that the victim was violent in order to show that he was the first aggressor. Prosecution then allowed to rebut with evidence that the ∆ was violent

Question 31

What is the Rape-Shield Statute for Civil Cases

Answer 31

Under the RSS in a civil case, evidence of reputation, opinion, or specific instances of the victims engagement in other sexual activity or their sexual predisposition is admissible if the PV of the evidence substantially outweighs unfair prejudice **AND** in the case of reputation evidence, the π puts their reputation at issue in some way.

Question 32

What is the Rape Shield Statute for Criminal Cases?

Answer 32

In criminal cases, reputation or opinion evidence of a victims engagement in other sexual activity or sexual predisposition is inadmissible unless the evidence is being used to show that (1) a third party was the source of the semen or harm/injury, (2) the ∆ and victim were involved in prior acts of consensual sexual intercourse, and (3) the exclusion would violate the ∆'s constitutional rights.

Question 33

Whats the procedure for Rape Shield Statute evidence?

Answer 33

Parties must disclose their intent to include evidence implicating the RSS. The party must provide for the purpose for offering it and it must be disclosed at least 14 days before trial.

Question 34

What are specific instances of a ∆'s conduct (prior bad acts) admissible?

Answer 34

In civil and criminal cases, specific instances/prior bad acts are generally inadmissible to show that they acted in conformity with their character, but are admissible for **MIMIC**: Motive Intent Absence of mistake/knowledge Identity (extremely similar or unique prior act) Common plan or scheme **ALWAYS SUBJECT TO 403 BALANCING**

Question 35

What is the general rule about impeachment?

Answer 35

Any party, including the party that called the witness, may impeach the credibility of the witness through various methods.

Question 36

What is Extrinsic Evidence? How do extrinsic evidence and impeachment relate?

Answer 36

Extrinisic evidence: any evidence other than the witness's testimony at the current proceeding; includes evidence of out of court prior inconsistent statements Extrinisic evidence may be used to impeach the witness, except on **collateral matters** and **prior bad acts** Collateral Matters: a fact not material to the issue in the case; says nothing about the witnesses' credibility; **ASK: would the evidence be material to the given issue if not for W's contrary assertion; if no, likely collateral**

Question 37

What is impeachment by contradiction?

Answer 37

Any evidence may be used to show the witness has made contradictory statements on material issues.

Question 38

What is impeachment by prior inconsistent statement? What if it is a hearsay statement?

Answer 38

Attorney may impeach with a witness's prior inconsistent statement so long as they have an opportunity to explain or deny the statement. If it is a hearsay statement, it is still admissible for impeachment purposes but not substantive purposes

Question 39

What is impeachment by prior instances of misconduct?

Answer 39

On **cross-examination**, witness may impeached with prior instances of misconduct if they are **probative of truthfulness** Arrests are not misconduct unless it was something like perjury, embezzlement, etc. **No extrinisic evidence permitted**, witness can only be asked about these instances and attorney must take answer

Question 40

What is impeachment of untruthful character?

Answer 40

Attorney may impeach witness with opinion and reputation evidence of the witnesses **untruthful character** No **improper bolstering**; can only provide postive character evidence after the witness has been attacked

Question 41

What is impeachment by prior conviction?

Answer 41

(1) For **crimes punishable by death or one year imprisonment** and less than 10 years, the evidence must be admitted subject to 403 Balancing in a criminal/civil case if the witness is not the ∆ (2) For **crimes punishable by death or one year imprisonment** and less than 10 years, the evidence must be admitted subject to the probative value outweighing unfair prejudice if witness is the ∆ (3) Any crime (felony or misdemeanor) where more than **10 years** have elapsed (conviction or release of confinement; whatever is later) should be submitted so long as it meets 403 Balancing where the PV most substantially outweigh unfair prejudice and **proponent gives notice that they are going to use it** (4) Crimes involving **dishonest acts or false statements** are **automatically admitted** (felonies and misdemeanors); no discretion to exclude under 403

Question 42

What are the basic requirements for witnesses?

Answer 42

All witnesses must be **competent** to testify truthfully and accurately. In federal cases, all witnesses are presumed competent, while in state cases the rules may vary. In order to be competent, the party must have: (1) Personal Knowledge: Witness tesitmony must be based on their own perceptions (e.g., what witness saw or heard).** This may be through their own testimony.** (2) Memory: Witness must have the ability to remember (e.g., must not suffer from amnesia) (3) Communication: Witness must be able to relay their perceptions, either directly or through an interpreter (4) Oath or affirmation: must give an oath or affirmation to testify truthfully in a manner that impresses the duty **Diminution of any of these usually goes to the weight of the witness testimony and its considered less persuasive**

Question 43

When may witnesses be excluded from hearing other testimony?

Answer 43

Upon request from either party, a judge may order the witnesses excluded from hearing other witnesses testimony Exception: Parties or party representatives

Question 44

What can juror's testify about?

Answer 44

(1) Extraneous prejudicial information (e.g., personal threats) (2) Improper outside influence (e.g., news media coverage) (3) Mistake in entering the verdict

Question 45

What are Jurors restricted from testifying about? Can they testify in front of other jurors?

Answer 45

Juror's may not testify in front of other jurors. If they are permitted to testify they must not testify to: (1) **any statement** made during jury deliberation (2) **effect of anything** on any juror's vote (3) **any mental thought processes** that went into to making their vote

Question 46

Whats the juror rule with racial stereotypes?

Answer 46

If a juror testifies and makes a clear statement that they relied on **racial stereotypes and animus** to convict, **along with proof that other jurors made statements based on a racial basis**, the 6A requires that the No Impeachment Rule give way in order to permit the trial court to consider the evidence of the juror's statement

Question 47

What is a Refreshed Recollection?

Answer 47

Attorney's may use documents to refresh the witnesses memory during testimony. Rules: (1) **Anything** can be used to refresh witness memory (2) Witness **cannot read aloud** from a document, but can look at it briefly, then continue testimony unassisted (3) **Opponent may inspect** and **offer into evidence** anything used to refresh witness memory (4) Document is **not read into evidence** (difference from recorded recollection)

Question 48

What is a Recorded Recollection?

Answer 48

(1) Witness **once had personal knowledge** of the matter (2) Witness now has **insufficient recollection** of the matter to testify validly and accurately to the record's contents (3) Record was made or adopted **at a time when it was fresh in the witness's memory** (4) Record accurately **reflects** the witness's knowledge

Question 49

What are the types of objections that can be made?

Answer 49

(1) Calls for narrative: non-specific and open ended; allows witness to tell a story instead of giving specific testimony in response to specifically asked questions (2) Leading: question itself suggests the answer; improper on direct unless witness is hostile or adverse; **acceptable on cross** (3) Assumes facts not in evidence: question makes an assumption which has not been established on the record (4) Argumentative: question that is not designed or inteded to elicit relevant facts, but rather an argumentative assertion (5) Compound: question that asks more than one question at a time; attorney must ask questions individually (6) Beyond scope of direct: arises on **cross-exam** to the scope of direct (IOW: cannot ask questions involving matters not discussed on direct)

Question 50

What are the requirements of a lay opinion?

Answer 50

Lay opinion testimony is admissible if it is: (1) **Rationally based**: opinion is rationally based on the witness's perception (2) **Helpful**: opinion is helpful to the trier of fact (e.g., givses the jury more information regarding W's perception than the perception alone; not legal conclusions) (3) **Not Expert**: not based on scientific, technical, or other specialized knowledge Examples: speed of a car, emotional state of an individual, voice or handwriting recognition, sense recognition, intoxication

Question 51

What are the requirements for expert opinions?

Answer 51

Expert testimony is admissible if it is **HQ RPR**: (1) **Helpful**: expert opinion must be helpful to the trier of fact (e.g., expert uses specialized knowledge to reach conclusions an average juror would not reach alone) (2) **Qualified**: expert must possess special knowledge, skill, experience, training, and education (3) **Reasonably certainty:** expert must believe in her opinion to a reasonable degree of certainty (4) **Proper factual basis:** opinion must be based on facts (expert may base opinion on admitted evidence, personal knowledge, or inadmissible evidence properly relied upon) (5) **Reliable principals reasonably rleied upon**: if expert opinion is based on science, the court also considers whether the evidence is (i) peer tested and capable of retesting, (ii) published, (iii) low error rate, and (iv) reasonably accepted in the field of study

Question 52

What can experts testify to? Any exceptions?

Answer 52

Experts can testify on any ultimate legal issue. Exception: mental state of a ∆ in a criminal trial if it is an element of a crime or defense

Question 53

What privileges do federal courts recognize? What privilege do state court's also generally recognize?

Answer 53

(1) Attorney-Client Privilege (2) Spousal Privilege and marital communications (3) Psychotherapist-Patient Privilege (4) Clergy-Pentinent Privilege (5) Governmental Privilege **Federal court's don't recognize doctor-patient**, but many state courts do

Question 54

What is the 5A Privilege Against Self-Incrimination?

Answer 54

(1) Applies to evidence that is **testimonial in nature** (2) Must be **compelled** (3) Reasonable possibility of self-incrimination (face the **cruel trilemma**)

Question 55

Does the accused have to take the stand in a criminal trial?

Answer 55

No. 5A right against self-incrimination allows the accused to refuse to take the stand.

Question 56

Does the witness have the right to refuse to take the stand? Do they have the right to refuse questioning?

Answer 56

No. Witnesses must take stand. Witnesses have rigtht to refuse questioning if questioning is testimonial, compelled, and there is a realistic possibility of self-incrimination from questioning (cruel trilemma)

Question 57

What are the two types of immunity?

Answer 57

(1) Transactional Immunity: broad gurantee against future prosecution; prevents government from prosecuting witness for any crimes mentioned in the testimony (2) Use-fruits/derivative immunity: prevents government from using witness testimony or evidence they gained from it against the witness

Question 58

What is the scope of the Attorney-Client Privilege? Who can claim the privilege?

Answer 58

ACP protects communications between the **client and attorney/other agents of the attorney** if the communications were: (1) Intended to be **confidential** or the client **reasonably believed they were confidential**; and (2) For the purpose of **rendering** **legal services** Client/client's representative or attorney on behalf of client can claim the privilege.

Question 59

What does the Attorney-Client Privilege not protect?

Answer 59

(1) Preexisting documents (2) Basis facts such as someone's name, occupation, address, etc.

Question 60

What is the Crime-Fraud Exception?

Answer 60

No ACP if a client: (1) **Knowingly or reasonably should have known** the legal advice they sought; (2) Was in **furtherance** of an ongoing or future crime/fraud

Question 61

What is the Deceased Client Exception?

Answer 61

While ACP generally **survives death**, no ACP if **parties claim an inheritance from same deceased client**

Question 62

What is the Breach of Duty Exception? Where is this commonly seen?

Answer 62

If client breaches a duty owed to the lawyer or vice versa, ACP does not apply. Commonly seen in **malpractice claims**. If client sues lawyer for malpractice, lawyer cannot assert ACP to hide communications

Question 63

What is the Self-Defense Exception? Where is this seen commonly?

Answer 63

Lawyer may disclose confidential communications if disclosure is **necessary** for the lawyer to **defend himself** Commonly seen in malpractice claims.

Question 64

What is the Joint Client Exception?

Answer 64

Joint venture clients cannot assert the ACP to prevent disclosure in a subsequent lawsuit **between the joint clients**

Question 65

What is the Public Officer Exception?

Answer 65

No privilege between agency/public officer and its lawyers unless communication concerns a **pending investigation/claim** and the **court determines** the disclosure will **seriously impair the ability of the public officer/agency to process the claim/conduct**

Question 66

What is the scope of the doctor-patient privilege?

Answer 66

To be protected, a communication must be: (1) Confidential or the client reasonably believes the communication was intended to be confidential (2) For the purpose of obtaining a treatment or diagnosis; and (3) The communication is pertinent to the diagnosis or treatment

Question 67

What is the scope of the psychotherapist-patient privilege?

Answer 67

Privilege applies if: (1) Client intends the communication to be confidential and (2) Communication is made to facilitate therapy or social work

Question 68

What is a doctor and a psychotherapist for purposes of the doctor/psychotherapist-patient privilege? What about clinical social workers?

Answer 68

Doctor: someone authorized to practice medicine in any state or reasonably believed by patient to do so Psychotherapist: (1) someone authorized to practice medicine in any state or reasonably believed by the client to do so or (2) a person licensed or certified as a psychologist under the laws of the state. Clinical social workers are **psychotherapists** for purpose of privilege

Question 69

What are some exceptions to the doctor/psychotherapist-patient privilege?

Answer 69

Privilege does not apply where: (1) Patient's condition is a **legal issue** (e.g., personal injury) (2) Physicians services were sought to aid a crime or tort (3) Fee payments (4) Dispute between doctor and patient (5) Autopsy reports?

Question 70

What are the two types of Spousal Privilege?

Answer 70

(1) Spousal Testimony Privilege: in **criminal cases**, spouses have the right not to be forced to testify against their former spouse (only witness spouse may invoke privilege) (2) Spousal Communications Privilege: in **civil and criminal cases** protects confidiential communications made during a legally valid marriage

Question 71

What is the scope of the Spousal Testimony Privilege?

Answer 71

(1) Applies only in **criminal cases** (2) Protects **testimony against spouse** (3) Must be married **at time of the trial to claim privilege** (4) May be waived by the **witness-spouse**

Question 72

What is the scope of the Marital Communications Privilege?

Answer 72

(1) Applies in **criminal and civil cases** (2) Protects **confidential communications within a legally valid marriage** (loss of confidentiality breaks privilege) (3) Must be married **at the time of communication** (4) Can be waived only by **both parties**

Question 73

What are the exceptions to the Marital Communications Privilege?

Answer 73

(1) Proceeding brought by or on behalf of either spouse to **establish competence** (2) Civil divorce and custody suits (3) Proceedings in which one spouse is being charged with a crime/tort against another spouse or against children (4) Joint participation by both spouses in criminal act

Question 74

What is authentication?

Answer 74

Every item of physical evidence must be authenticated; the proponent must show that the evidence is what it claims to be

Question 75

What are the three types of tangible evidence for authentication purposes?

Answer 75

(1) Real Evidence: documentary evidence such as writings like letters, Ks, books, x-rays, photographs, etc. Can also be physical objects like weapons, drugs, etc. (2) Demonstrative Evidence: maps, charts, diagrams, scale models (3) Scientific Evidence: scientific tests and expirments included such as evidence of blood tests, radar, voiceprints, fingerprinting, etc.

Question 76

What are the main methods of authentication?

Answer 76

(1) Testimony of a witness with knowledge: this is typically with direct testimony and chain of custody; **simply requires witness to testify that based on their knowledge, the item is genuinely what the proponent claims it to be** (2) Nonexpert Opinion on Handwriting: non-expert must be familar with the handwriting (3) Comparison by an Expert Witness or Trier of Fact: expert witness who compares the offered item to another item that has been authenticated (4) Distinitive Characteristics (5) Opinion abouta. Voice: witness may identify a voice based on hearing the voice at any prior time

Question 77

What is the Ancient Document Rule?

Answer 77

Document or data compilation is automatically authenticated if: (1) Document is 20 or more years old (2) Does not present any irregularities on its face; and (3) Found in a place of natural custody