Evidence MBE Flashcards
(125 cards)
1
Q
**
What facts are subject to judicial notice?
A
facts that are not subject to reasonable dispute because they are either
(i) generally known within the territorial jurisdiction of the trial court, or
(ii) capable of being accurately and readily determined from sources whose accuracy cannot reasonably be questioned
2
Q
What are the four requirements to admit a record under the recorded recollection hearsay exception?
A
- Made by the witness near the time of the event
- The witness’s memory cannot be revived
- It is about something that the witness once had knowledge of
- There is sufficient evidence that the record was accurate when made
3
Q
The party offering the evidence ordinarily bears the burden to persuade the judge by a
A
preponderance of the evidence
4
Q
What is the plain error rule?
A
A plain error is one that is obvious to the reviewing court and if it affects a substantial right is grounds for reversal, even if no objection was made
5
Q
Explain the completeness doctrine
A
When a party introduces part of a statement, an adverse party may compel the introduction of an omitted portion of the statement if, in fairness, it should be considered at the same time
- such as when the omitted portion explains or clarifies the admitted portion
- The adverse party may do so over a hearsay objection
6
Q
What are the exceptions to not asking leading questions in direct examination?
A
when necessary to develop the witness’s testimony
(i) preliminary background matters
(ii) hostile witnesses, and
(iii) minors or those with difficulty communicating.
7
Q
Distinguish between the pendency of an appeal of a conviction and a pardon for impeachment purposes
A
If pardoned –> not admissible as a conviction because it has been pardoned
If an appeal is pending –> conviction is admissile along with evidence of the pendency is also admissible
8
Q
When does the intentional destruction of evidence raise a rebuttable presumption or inference that such evidence would have been unfavorable to the party that destroyed the evidence?
A
the alleged victim must establish that:
(i) The destruction was INTENTIONAL;
(ii) The destroyed evidence was RELEVANT to the issue about which the party seeks such inference; and
(iii) The alleged victim acted with DUE DILLIGENCE as to the destroyed evidence
9
Q
To what proceedings do the Federal Rules of Evidence not apply?
A
- preliminary question of fact governing admissibility;
- Grand jury proceedings; and
- Criminal proceedings for:
(a) issuance of a search or arrest warrant or a criminal summons;
(b) A preliminary examination in a criminal case;
(c) Extradition or rendition;
(d) Consideration of bail or other release;
(e) Sentencing; and
(f) Granting or revoking probation or supervised release.
10
Q
What requirements must be met for the opinion of a lay witness to be admissible?
A
opinion must be:
(i) Rationally based on the perception of the witness; and
(ii) Helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue
11
Q
What five hearsay exceptions only apply when the hearsay declarant is unavailable?
A
(1) Former testimony;
(2) Dying declaration;
(3) Statement against interest;
(4) Statement of personal or family history;
(5) Statement offered against a party that wrongfully caused the declarant’s unavailability
12
Q
When must a preliminary hearing on admissibility be conducted outside the presence of the jury?
A
- on the admissibility of a confession
- when the defendant in a criminal trial is a witness and so requests it, or
- when justice requires it.
13
Q
What is the dead man statute?
A
In civil cases, a party with a** financial interest** in the outcome of a case is not permitted to testify adversely about a communication or transaction with a person whose estate is a party to the case.
14
Q
How can handwritting be authenticated?
A
- An expert witness or the trier of fact may compare the writing in question with another writing that has been proven to be genuine; or
- A lay witness with personal knowledge of the claimed author’s handwriting may authenticate the handwriting, as long as the witness did not become familiar with the handwriting for the purposes of the current litigation
15
Q
When may the prosecution offer evidence of an alleged victim’s good character in a criminal case?
A
The prosecution can offer:
(i) Rebuttal evidence of a victim’s good character when the defendant has introduced evidence of the victim’s bad character; and
(ii) Evidence of the victim’s character trait for peacefulness in homicide cases to rebut evidence that the victim was the first aggressor
16
Q
When can evidence that a criminal defendant committed another sexual assault be admitted?
A
Always to prove any relevant matter if the case has to do with a sex crime or conspiracy thereof
17
Q
What four categories of witnesses may not be excluded from the courtroom to prevent them from hearing the testimony of other witnesses?
A
(i) A party who is a natural person;
(ii) An officer or employee of a party that is not a natural person if that officer or employee has been designated as the party’s representative by its attorney;
(iii) Any person whose presence is essential to a party’s presentation of its case; and
(iv) A person whose presence is permitted by statute (e.g., victims).
18
Q
What two requirements must be met to use a conviction as impeachment evidence if more than 10 years have elapsed since the latter of the conviction or release from confinement?
A
when
(i) Its probative value substantially outweighs its prejudicial effect; and
(ii) The proponent gives the adverse party reasonable written notice of intent to use the evidence.
19
Q
What is the “bursting bubble” approach to burden shifting?
A
A rebuttable presumption no longer has a preclusive effect after the opposing party introduces sufficient evidence to sustain a contrary finding. If contrary evidence is introduced, the burden of persuasion remains on the party who had it originally.
20
Q
Describe the manner of proof used for admitting convictions to impeach a witness
A
- admission cross examination of the witness
- extrinsic evidence
21
Q
List 4 examples of preliminary questions of admissibility that a judge, rather than a jury, would determine
A
the admissibility of evidence;whether a privilege exists; whether a person is qualified to be a witness; whether an exception hearsay applies
22
Q
What two elements do the Confrontation Clause of the Sixth Amendment require in order for out-of-court testimonial statements to be used against a criminal defendant?
A
(i) The declarant must be unavailable; and
(ii) The defendant must have had a prior opportunity to cross-examine the declarant.
23
Q
What two questions must the court ask to determine whether the subject matter of an expert’s proposed testimony is proper?
A
(i) Is the subject matter scientific, technical, or other specialized knowledge, (i.e., reliability assessment); and
(ii) Will it help the trier of fact understand the evidence or determine a fact in issue (i.e., relevance assessment).
24
Q
What are the three requirements for the business records hearsay exception?
A
- Record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling;
- The making of the record was a regular practice of that activity; and
- The record was made at or near the time by someone with knowledge or transmitted by ssuch a person
25
What standard of proof applies to the authentication of tangible evidence?
Sufficient evidence (lower standard than preponderance of the evidence)
26
What is the present sense impressione exception to hearsay?
A statement describing or explaining an event or condition that is made while or immediately after the declarant perceived it
27
What is the excited utternace exception to hearsay?
A statement made about a startling event or condition while the declarant is under the stress of excitement that it caused
28
How may a party to a telephone conversation authenticate a voice belonged to a particular person in that conversation?
By testifying that:
(i) The caller RECOGNIZED the speaker’s voice;
(ii) The speaker KNEW facts that only a particular person would know;
(iii) The caller dialed a NUMBER believed to be the speaker’s, and the speaker IDENTIFIED himself upon answering; or
(iv) The caller dialed a business and spoke to the person who answered about business regularly conducted over the phone.
29
What does the best evidence rule require, and what are its exceptions?
the best evidence rule requires that the original document be produced to prove its contents, if
(1) the contents of a document are at issue, or (2) a witness is relying on the contents of the document,
unless:
1. Originals
* LOST OR DESTORYED or
* * not by the proponent acting in bad faith;
* UNOBTAINABLE by any available judicial process;
2. The party against whom the original would be offered (a) had control of the original, (b) was on notice that the original would be the subject of proof, and (c) failed to produce it at the trial or hearing; or
3. The document is not closely related to a controlling issue.
30
When may a witness be impeached by evidence of a juvenile adjudication?
When the witness is NOT the defendant but ONLY IF:
(i) it is offered in a criminal case,
(ii) an adult's conviction for that offense would be admissible to attack the adult's credibility; and
(iii) admitting the evidence is necessary to fairly determine guilt or innocence
31
Is evidence of a juvenille adjudication admissible against a defendant for impeachment?
NO
32
What are three ways in which tangible evidence may be authenticated?
By testimony of
* 1. personal knowledge of the object or
* 2. of its distinctive characteristics; or
3. By chain of custody when a physical object that could easily be tampered with or confused with a similar item
33
When is evidence relevant?
Evidence is relevant if:
(i) It has any tendency to make a fact more or less probable than it would be without the evidence (i.e., probative); and
(ii) The fact is of consequence in determining the action (i.e., material).
34
When may "work product" be subject to discovery?
Seeking party
(i) Demonstrates a SUBSTANTIAL NEED for the information; and
(ii) Cannot obtain the information by any other means without UNDUE HARDSHIP
## Footnote
Mental impressions are never discoverable
35
When is character evidence admissible in civil cases, and in what forms?
When it is an essential element of a claim or defense
if admissible in civil case --> may be proved by reputation, opinion, and specific instances of a person’s conduct
36
What are three instances in which specific acts are admissible in criminal cases?
1. essential element of a charged crime (or of a defense) and a defendant offers specific acts inconsistent with the crime;
2. For non-propensity purposes (e.g., “MIMIC” evidence
3. When a character witness is asked on cross-examination about specific acts committed by the person about whom the witness is testifying
37
What are five non-hearsay uses for out-of-court statements?
(1) To prove that the statement was made (i.e., as legally operative fact);
(2) To show the effect on the recipient;
(3) As circumstantial evidence of the declarant's state of mind;
(4) As circumstantial evidence of identity; or
(5) Solely to impeach or rehabilitate
38
When is a statement against interest a valid hearsay exception?
If the statement:
(i) Was against the declarant’s interest at the time it was made; and
(ii) Would not have been made by a reasonable person unless he believed it to be true.
39
What is the balancing test when determining whether a testifying criminal defendant can be impeached with a conviction not involving dishonesty?
only if its probative value outweighs the prejudicial effect to that defendant (Reverse 403)
40
Statements made during settlement offers are inadmissable for
In regular cases
(i) To prove or disprove the validity or amount of a disputed claim; or
(ii) For impeachment by a prior inconsistent statement or contradiction
Medical
(i) not admisisble to prove liabiltiy for injuries
41
A court may exclude relevant evidence when its probative value
is substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needless cumulation of evidence
42
May a court admit evidence when the relevance of that evidence depends upon whether a fact exists?
Yes, the court may admit the evidence on the condition that proof of its relevance is later introduced
43
When a defendant wants to introduce character evidence of a pertinent trait, what is the proper form?
reputation testimony – testimony by someone sufficiently familiar with the defendant's reputation among associates or in the community or
opinion testimony – testimony sharing an opinion on the defendant's character that is based on personal knowledge and familiarity with the defendant.
## Footnote
CANNOT introduce specific acts
44
Once the defendant's character witness has testified, the prosecution may:
● cross-examine the witness about a specific act committed by the defendant that relates to the trait in question or
● call another witness to provide reputation or opinion testimony on the defendant's corresponding bad-character trait.
45
The FRE 403 balancing test renders relevant evidence inadmissible if
its probative value is substantially outweighed by the danger of unfair prejudice
Unfair prejudice > PV
46
A felony conviction that occurred within the previous 10 years is admissible against a criminal defendant for impeachment purposes if
its probative value outweighs its prejudicial effect on the defendant (reverse 403)
Unfair prejudice < PV
47
What does the best evidence rule require? When does the rule apply?
that the original document or a reliable duplicate be produced to prove the contents of a writing
It applies only when a witness is relying on the document when testifying or the contents of the document are at issue
48
A declarant's prior statement that identifies a person as someone the declarant perceived earlier is nonhearsay
if the declarant testifies and is subject to cross-examination about the statement
49
Is there a hearsay exception for a judgment of acquittal?
NO. there is one for judgment of a conviction
50
Final judgment of conviction admissible if:
* entered after trial or guilty plea
* crime punishable by death or imprisonment of more than one year
* admitted to prove any fact essential to judgment and
* against defendant, when offered by prosecutor in criminal case for purpose other than impeachmen
51
Does a judge have discretion to expand the scope of cross examination even if not covering what has been asked on direct?
Yes
52
Can a witness's credibility be raised on cross even if not raised at all during direct?
Yes
53
May a judge consider an affidavit in determining the admissibility of a statement?
Yes because although it is hearsay a judge may consider hearsay in ruling on preliminary questions
54
What is testimonial evidence?
Statements made under circumstances that would cause an objective witness to reasonably conclude that the statement would be available for use at a later trial (e.g., statements made during a custodial examination to an investigator, or in an affidavit) are testimonial.
## Footnote
an objective analysis of the circumstances, rather than the subjective purpose of the participants, is key
55
A juvenile conviction is never admissible in a ____ case to attack a witness's character for truthfulness
civil
## Footnote
In FLA it is not admisisble EVER in either case
56
Is testimony by a public official that a diligent search failed to disclose a public record admissible to prove that the record does not exist?
Yes under the absence of public records hearsay exception so long as the public office regularly kept records for a matter of that kind
57
In a criminal case, the spousal-immunity privilege allows the witness-spouse (the wife) to refuse to testify against the defendant-spouse about matters that occurred
before or during marriage
58
A civil party may compel the production of ordinary work product—not communications protected by the attorney-client privilege—if the party demonstrates that
it (1) has a substantial need for the materials to prepare its case and (2) cannot obtain the materials by other means without undue hardship
59
Evidence of subsequent remedial measures is inadmissible to prove negligence or other culpable conduct. But a court may allow evidence of such measures for other limited purposes such as
(1) resolving a dispute about the feasibility of precautionary measures, (2) impeaching a witness, or (3) proving ownership or control.
60
A party may impeach the witness with a prior inconsistent statement by
1. examining the witness about the statement or
2. introducing the statement through extrinsic evidence (such as testimony of another witness) if (1) the witness has an opportunity to explain or deny—and the opposing party has the opportunity to question the witness about—the statement or (2) justice so requires
BUT if impeaching a hearsay declarant PIS is admissible regardless of when statement occurred & whether declarant can explain/deny
61
When does a witness have personal knowledge?
when they
(1) perceived the matter firsthand and
(2) have a present recollection of that observation
62
Does an arrest qualify as a prior bad act that can be used to impeach a witness?
NO. A mere arrest does not qualify as a bad act that can be used to attack a witness's character for truthfulness. That is because an arrest for misconduct is not itself misconduct.
63
Statements made during settlement negotiations are generally inadmissible but this only applies if there has been a ____ first
an actual DISPUTE as to the validity of a claim
e.g Beginning a legal proceeding
64
An expert opinion based upon otherwise inadmissible facts or data is admissible if
experts in that particular field would reasonably rely on the facts or data in forming an opinion on the subject
65
What law should a federal court in diversity action apply to determine the effect of a presumption on a claim or defense when state law suppleid the presumption?
State law
66
Can the jury be provided with an entire learned treatise?
No. They may not examine the learned treatise, they may only be read portions of it from the witnesses
67
Evidence that a person was or was not insured against liability is not admissible to prove
whether the person acted negligently or otherwise wrongfully
68
Is physical evidence subject to the best evidence rule?
NO.
The best evidence rule—generally requires that an original recording, writing, or photograph (referred to as "document") be produced to prove its contents. This rule applies when a witness is testifying based on facts learned from the document—as opposed to personal knowledge. However, real or physical evidence (e.g., a three-dimensional model) is not subject to the best evidence rule.
69
When must the prosecution provide notice to a defendant about testimony?
Per the defendant's request, the prosecution must give the defendant a written summary of testimony from any expert witness the prosecution intends to introduce at trial
No other testimony requires advance notice even if a D requests it
70
After trial or indictment, what may a juror testify about?
May testify about improper extraneous prejudicial information, outside influence, or mistake on verdict form
May NOT testify about jury deliberations
71
The hearsay exception of recorded recollection allows the statement to be *read* into evidence, but it may only be accepted as an *exhibit* if
it is offered by the adversr party
72
Elements for recorded recollection hearsay exception
1. concerns a matter that a witness once knew but cannot recall at trial
2. was made or adopted by the witness when the matter was fresh in his/her mind *and *
3. accurately reflects the witness's personal knowledge at the time it was made.
73
Extrinsic evidence of a witness's prior inconsistent statement is admissible only if the impeached witness has the opportunity to ________________ and the adverse party can _________________
explain or deny—and the adverse party can examine the witness about—the statement (or if justice so requires)
74
What is the difference between how a specific instance of conduct of a felony or crime of dishonesty can be introduced and how a SIC for a prior bad act can be introduced to imepach a witness?
Felony or conviction--> extrinsic (docs) and instric (testimony of witness on stand)
evidence prior bad act --> only intrinsic
(can only ask witness on stand, if denies, end of inquiry)
75
A prior inconsistent statement is inadmissible to prove the truth of the matter asserted therein (i.e., as substantive evidence) unless it is excepted or excluded from the hearsay rule. It is excluded from hearsay (i.e., is nonhearsay) if:
the statement was given under penalty of perjury at a trial, hearing, deposition, or other proceeding
AND
the declarant testifies and is subject to cross-examination at the current trial
76
A party may use a writing to refresh a witness's recollection when
(1) the witness once had personal knowledge of a fact or event but is now unable to recall it and (2) the writing will help the witness recall that information
77
Once a witness has used a writing to refresh his/her recollection, the adverse party is entitled to
(1) have the writing produced for inspection,
(2) cross-examine the witness about the writing, and
(3) introduce into evidence any portion of the writing that relates to the witness's testimony.
78
In deciding preliminary matters outside the presence of the jury, can the court consider evidence that is privileged?
NO. May consider all relevant evidence but cannot considerprivileged evidence.
79
The court must decide preliminary questions of fact related to whether evidence is admissible, a privilege exists, or a witness is qualified. Any hearing on these matters must be conducted outside the jury's presence if
(1) the matter involves the admissibility of a confession, (2) a defendant in a criminal case is a witness and so requests, or (3) justice so requires
80
Convictions for crimes of dishonesty always come in for impeachment, whereas whether felony convictions come in depending on whether
the witness is criminal or non-criminal
If non-criminal --> ADMISSIBLE unless PV is substantially outweighted by PE 403 **PE > PV **
If criminal --> INADMISSIBLE unless PV substnatially outweighes PE reverse 403
**PE < PV **
81
Statements that to illustrate the declarant's world view or belief system are ________ offered for the truth of the matter asserted
NOT. It is not offered for the truth that what the declarant said is the objective truth, rather it is offered to show that that is what the declarant thought.
82
Authenticating an item of evidence that is a physical representation of something that could not otherwise be seen requires proof that
(1) the process for creating the evidence was accurate, (2) the machine that produced the evidence was working properly, and (3) the operator of the machine was qualified to operate it
83
If a witness becomes familiar with a defendant's handwriting in anticipation of litigation in order to authentitcate it, is that prooer?
NO. Must have been familar with it before anticipation of litigation
84
in determining whether sufficient proof has been introduced regarding a relevant fact, the court must examine all of the evidence and decide whether the jury could find the fact under which standard?
reasonably find the conditional fact by a preponderance of the evidence
85
When relevance of evidence depends on whether certain fact exists, how much evidence must the proponent introduce to support a finding that the fact exists? Can the court allow the proponent to introduce the proposed evidence on the condition that supporting proof be introduced later?
proponent must introduce evidence s**ufficient to support finding** that fact exists
YES the court may admit proposed evidence on condition that supporting proof be introduced later
86
# **
must a judge give a party an opportunity to be heard on the taking judicial notice and the nature of the fact to be noticed?
No, unless the party makes a timely request
However, without a request, a judge is not required to provide this opportunity before taking judicial notice of an adjudicative fact
87
Compromise offers (and acceptances), as well as conduct or statements made during compromise negotiations, are generally inadmissible to
1. PROVE VALIDITY or AMOUNT
2. IMPEACH by PIS or contradiction
88
An unavailable declarant's former testimony is excepted from the hearsay rule if:
the testimony was given at a trial, hearing, or deposition in the current case or a different proceeding and
the party against whom the testimony is offered—or, in a civil case, the party's predecessor in interest—**had an opportunity and similar motive** to **develop t**he testimony through **direct or cross-examinatio**n of the declarant.
89
When can the court admit evidence of a victims sexual conduct in a civilc ase?
Never unless the court determines that the probative value of the evidence substantially outweighs the danger of harm to the victim and unfair prejudice to any party PV > PE
90
What is the records or statements hearsay exception?
records or statements of a public office that set out:
activities of the public office or agency
matters observed pursuant to a legal duty to report, excluding observations of law-enforcement personnel in criminal cases or
factual findings from a legally authorized investigation offered (1) in a civil case or (2) against the government in a criminal case.
91
Does an item used to refresh a witness's recollection need to have been created by that witness?
No
## Footnote
A party may use any item (e.g., a writing) to refresh a witness's recollection when:
the witness once had personal knowledge of a fact or event but is now unable to recall it and
the item will help the witness recall that information.
92
What are two statements that are NONhearsay?
Statement by declarant-witness
* inconsistebt and sworn to
* consistent and offfered to rebut charge of fabrication/improper imfluence or rehabilitate witness or
* Identifies person witness perceived earlier
Statement by party opponent
* Made or adopted by
* * party
* * person authorized by party
* * party's agent/ employee on matter within scope of relationship or
* * party's cocosnpirator during and in furtherance of conspiacy
93
Under the public records exception, how many days written notice of the intent to offer that evidence does the prosecution have to provide?
14 days before tiral
D has 7 days from receipt of notice to object in writing
94
In a preliminary hearing, what may the defendant be questioned about? How does that differ from a regular trial?
At a preliminary hearing the D is only subject to cross examination on the specific issue addressed at the hearing and issues related to the defendant's credibility
At trial D can be cross examined about matters not covered ond riect if Court grants porsecution authority to do so
95
Are offers to pay medical expenses are inadmissible to prove liability regardless of when they were made?
Yes
96
What is the Federal inadvertent waiver rule?
Disclosure of attorney-client communication or attorney work product not waiver—in federal or state proceeding—if:
1. disclosure was made in federal proceeding or to federal agency
2. disclosure was inadvertent
3. privilege holder
* took reasonable steps to prevent disclosure and
* promptly took reasonable steps to rectify error
97
evidence of liability insurance (or the lack thereof) is inadmissible to prove negligence or wrongdoing, but it is admissible to
1. impeach a witness with evidence of self-interest, bias, or prejudice or
2. proving agency, ownership, or control of the insured item
98
statements in a learned treatise, periodical, or pamphlet are excepted from hearsay and are admissible for their truth when:
1. the publication is established as a **reliable authority by a party's expert or judicial notice** and
2. the statements are** called to the attention** of or **relied on **by an **expert witness** during examination
99
When is evidence of a defendant's prior crimes or bad acts admissible in a criminal case?
For a non character purpose such as MIMIC
100
Can a party use affidavits in a summary judgment motion?
Yes but only if the contents of the affidavit are admissible under evidence rules
101
Is a statement offered to show that a party had notice of a relevant fact or condition hearsay?
NO it is excluded from hearsay bc purpose is not to show truth of the matter asserted, instead it is sued to prove that the perosn had notice
102
Once the court makes a definitive ruling on the admissibility of evidence, does a party seeking to exclude evidence a party need to renew an objection to the admission of the evidence in order for the appellate court to review?
No, even if the ruling was made before the trial began bc there was a definitive ruling
103
The prosecution must provide reasonable notice of the general nature of such evidence that the prosecution intends to offer at trial. Does the defense have to provide that same notice to the defense?
No, the defense is not required to give the prosecution the same notice.
104
If a defendant stipulates to a fact, does it make the prosecution's testimony of that fact irrelevant?
No, but depending on the nature of the testimony it may be unfairly prejudicial to the defendant
105
Relevant specific acts of a defendant's character may be introduced
In a criminal trial generally unadmissible even if character evidence is admissible through opinion or reputation testimony unless
- When character or a character trait is an essential element of a crime or defense
In a civil trial
- when the character is an essential element of a claim or defense
106
A criminal defendant is permitted to introduce evidence of his good character as being inconsistent with the type of crime charged, but that evidence must be
(i) pertinent to the crime charged and (ii) in the form of reputation or opinion testimony
Evidence of specific acts of the defendant's good character is not admissible unless character is an essential element of the crime charged
107
May a party impeach the credibility of a witness by introducing extrinsic evidence of a collateral matter?
NO instead, the party must accept the witness’s testimony.
## Footnote
ex: said car was purple but it was black in a rape case
108
the confidential marriage communication portion of the spousal privilege can be asserted after a marriage is over as long as
the communication was made during the marriage and in reliance on the sanctity of marriage
109
Although a confidential communication made by a client for the purpose of obtaining or providing legal assistance for the client is generally protected by the attorney-client privilege, this privilege does not apply to communications between former co-clients who are
now adverse to each other
110
A married person may not be compelled to testify against her spouse in any criminal proceeding, regardless of who is the defendant. However, there is an exception when
one spouse is charged with a crime against the other spouse or the children of either
111
Statements made during settlement negotiations are inadmissible to prove or disprove the validity or amount of a disputed claim. Such statements may be admitted for other purposes, however, such as to prove
the bias or prejudice of a witness
112
An out-of-court statement describing medical history or past or present symptoms and made for medical diagnosis or treatment,
is an exception from hearsay and is admissable, it does not need to be said directly to the physician. Statements to other medical personnel, including hospital attendants and ambulance drivers, may qualify.
113
# Non hearsay
What three types of prior statements are non-hearsay?
(1) PSI's made under penalty of perjury;
(2) Prior consistent statements admitted to
* (i) rehabilitate the witness's credibility or
* (ii) rebut a suggestion of recent fabrication or improper motive, as long as the prior statement was made before the witness had reason to fabricate;
(3) Prior statements of identification of a person after perceiving that person
114
What is the difference between the application of a Dead Man's Statute in a criminal case versus a civil case?
Dead Man's Statutes do not apply in criminal cases
In civil cases, a party with a **financial interest** in the outcome of a case **is not permitted to testify adversely** about a communication or transaction with a person whose estate is a party to the case.
115
For impeachment purposes, distinguish between the pendency of an appeal of a conviction and a pardon.
Pardon: Evidence of the witness's conviction is not admissible if it has been the subject of a pardon.
Appeal Pending: A witness's conviction may be used for impeachment purposes even if an appeal is pending. Evidence of the pendency is also admissible.
116
What is the plain error rule?
A plain error is one that is obvious to the reviewing court. A plain error that affects a substantial right is grounds for reversal, even if no objection was made.
117
What are five non-hearsay uses for out-of-court statements (i.e. uses that prove something other than the truth of the matter asserted)?
A statement is non-hearsay if offered:
(1) To prove that the statement was made (i.e., as legally operative fact);
(2) To show the effect on the recipient;
(3) As circumstantial evidence of the declarant's state of mind;
(4) As circumstantial evidence of identity; or
(5) Solely to impeach or rehabilitate.
118
What are four exceptions to attorney-client privilege?
Communications that are:
(i) Fraud/ Crime: Made to enable or aid the commission of what the client knew or should have known was a crime or fraud;
(ii) Dispute attny client: Relevant to a dispute between attorney and client or former client (e.g., a malpractice allegation);
(iii) Dispute deceased client: Relevant to a dispute between parties who claim through the same deceased client; and
(iv) Co-client: Between former co-clients who are now adverse to each other.
119
How may a person authenticate a voice during testimony?
By testifying that:
(i) The caller **recognized** the speaker’s voice;
(ii) The **speaker knew facts** that only a particular person would know;
(iii) The caller dialed a number believed to be the speaker’s, and the **speaker identified himself upon answering**; or
(iv) The caller dialed a business and **spoke to** the **person who answered about business regularly conducted over the phone**.
## Footnote
Note: Remember that a voice can be identified by any person who has heard the voice at any time, including one made familiar solely for the purposes of litigation
120
What five hearsay exceptions only apply when the hearsay declarant is unavailable?
(1) Former testimony;
(2) Dying declaration;
(3) Statement against interest;
(4) Statement of personal or family history;
(5) Statement offered against a party that wrongfully caused the declarant’s unavailability
121
To what matters is cross examination is limited?
To the subject matter asked on direct examination unless the court expands the scope
122
When may an expert OR the jury authenticate handwriting?
After a lay witness has authenticated it due to their own personal knowledge (familiarity) of the writing not acquired for the purpose of litigation
123
What is the hearsay exception for statements in documents affecting a property interest?
if there is a document that has a statement affecting a property interest it is an exception to hearsay if
* the matter stated was relevant to the document's purpose and
* later dealings with the property do not contradict the truth of the statement or the purport of the document
124
a court may relieve a party from a final judgment or order for a motion filed, within a reasonable time, and no later than one year following the entry of the judgment or order for which reasons?
mistake,
inadvertence,
surprise,
excusable neglect,
newly discovered evidence that could not have been earlier discovered with reasonable diligence (implies the evidence existed at time of trial),
fraud,
misrepresentation, or
misconduct by an opposing party
125
