Quentin Jorgensen

Question 1

401 Relevance Test

Answer 1

(a) it has any tendency to make a fact more or less likely and (b) the fact is of consequence in determining the action.

Question 2

403 Relevance Test

Answer 2

The probative value is substantially outweighed by a danger of one or more of the following: (1) unfair prejudice, (2) confusing the issues, (3) misleading the jury, (4) undue delay, (5) wasting time, or (6) needlessly presenting cumulative evidence.

Question 3

104(a) Preliminary Questions

Answer 3

The COURT must decide any preliminary question whether a witness is:

i. Qualified
ii. A privilege exists
iii. Admissibility of Evidence
iv. The court is NOT bound by evidence rules except those that are privileged.

Question 4

104(b) Conditional Relevance

Answer 4

When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later.

Question 5

404(a)(1) Character Evidence - Prohibited Uses

Answer 5

Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait. (No Propensity)

Question 6

404(a)(2)(A) Character Evidence - Criminal Defendant Exception

Answer 6

defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it

Question 7

404(a)(2)(B) Character Evidence - Victim Exception

Answer 7

a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may:

(i) offer evidence to rebut it; and
(ii) offer evidence of the defendant’s same trait

Question 8

404(a)(2)(C) Character Evidence - Exception for D claim V was aggressor

Answer 8

in a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor.

Question 9

404(b)(1) Character Evidence - Crimes, Wrongs, or Other Acts - Prohibited Uses

Answer 9

Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.

Question 10

404(b)(2) - Character Evidence - Crimes, Wrongs, or Other Acts - Permitted Uses/Notice in Criminal Case

Answer 10

This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.

On request by a defendant in a criminal case, the prosecutor must:
(A) provide reasonable notice of the general nature to offer the evidence at trial; and
(B) do so before trial — or during trial if the court, for good cause, excuses lack of pretrial notice.

Question 11

405(a) Character Evidence - Methods of Proving Character

Answer 11

By Reputation or Opinion. When evidence of a person’s character or character trait is admissible, it may be proved by testimony about the person’s reputation or by testimony in the form of an opinion. On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the person’s conduct.

Question 12

405(b) Character Evidence - Methods of Proving Character - Specific Instances

Answer 12

When a person’s character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person’s conduct.

Question 13

406 Habit; Routine Practice

Answer 13

Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.

Question 14

407 Subsequent Remedial Measures

Answer 14

When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:
• negligence;
• culpable conduct;
• a defect in a product or its design; or
• a need for a warning or instruction.
But the court may admit this evidence for another purpose, such as impeachment or - if disputed - proving ownership, control, or the feasibility of precautionary measures.

Question 15

408 Compromise Offers and Negotiations

Answer 15

(a) Prohibited Uses. Evidence of the following is not admissible—on behalf of any party—either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction:
(1) furnishing, promising, or offering—or accepting, promising to accept, or offering to accept—a valuable consideration in compromising or attempting to compromise the claim; and
(2) conduct or a statement made during compromise negotiations about the claim—except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority.
(b) Exceptions. The court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

Question 16

409 Offers to Pay Medical and Similar Expenses

Answer 16

Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury.

Question 17

410 Pleas, Plea Discussions, and Related Statements

Answer 17

Guilty pleas of the Defendant that were later withdrawn (and NC) are inadmissible as well as statements made during the process of taking those please.

Exceptions: The court may admit a statement described in Rule 410(a)(3) or (4):

(1) in any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together; or
(2) in a criminal proceeding for perjury or false statement, if the defendant made the statement under oath, on the record, and with counsel present.

Question 18

411 Liability Insurance

Answer 18

Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. But the court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice or proving agency, ownership, or control.

Question 19

607 Who May Impeach a Witness

Answer 19

Any party, including the party that called the witness, may attack the witness’s credibility.

Question 20

610 Religious Belief or Opinions

Answer 20

Evidence of a witness’s religious beliefs or opinions is not admissible to attack or support the witness’s credibility.

Question 21

608(a) Truthfulness of a Witness - Reputation or Opinion Evidence

Answer 21

A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked.

Question 22

608(b) Truthfulness of a Witness - Specific Instances of Conduct

Answer 22

Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of: (1) the witness; or (2) another witness whose character the witness being cross-examined has testified about.

Question 23

609(a)(1) Impeachment by Evidence of a Criminal Conviction

Answer 23

A crime that was punishable by death or by imprisonment for more than one year must be admitted, subject to rule 403, in a civil or criminal case in which the witness is not a defendant. A crime that was punishable by death or by imprisonment for more than one year must be admitted in which the witness is the defendant if the probative value of the evidence outweighs its prejudicial effect to that defendant

Question 24

609(a)(2) Impeachment by Evidence of a Criminal Conviction

Answer 24

Evidence of a crime for any crime regardless of the punishment, must be admitted if the court can readily determine that establishing the elements of the crime required proving — or the witness’s admitting — a dishonest act or false statement.

Question 25

609(b) Time Limitation on Impeachment by Evidence of a Criminal Conviction

Answer 25

If 10 years has passed since a conviction or since a witness's release from confinement, evidence is only admissible if its probitive value substantially outweighs its prejudicial effect AND reasonable written notice is given.

Question 26

609(c) Pardon Limitation on Impeachment by Evidence of a Criminal Conviction

Answer 26

Evidence is not admissible if a person has been pardoned or their conviction has been annulled based on a finding that the person has been rehabilitated, and the person has not been convicted of a later crime punishable by death or by imprisonment for more than one year; or the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.

Question 27

801(d)(1)(A) Prior Inconsistent Statements

Answer 27

(1) Declarant testifies in current proceeding (2) Is cross-examinable concerning the prior statement (3) Statement is “inconsistent” with present testimony (4) Statement was made under oath at “prior proceeding” or “deposition”

Question 28

613(b) Extrinsic Evidence of a Prior Inconsistent Statement

Answer 28

Extrinsic evidence of a witness's prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires. This subdivision (b) does not apply to an opposing party's statement under Rule 801(d)(2).

Question 29

806 Attacking and Supporting the Declarant

Answer 29

When a hearsay statement — or a statement described in Rule 801(d)(2)(C), (D), or (E) — has been admitted in evidence, the declarant's credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness.

Question 30

801(d)(1)(B)(ii) Prior Consistent Statements

Answer 30

(1) Declarant testifies (2) Is cross-examinable concerning the prior statement (3) Statement is “consistent” with present testimony (4) Rehabilitates credibility as a witness after attack other than on 801(d)(1)(B)(i) grounds

Question 31

611(c) Leading Questions

Answer 31

Leading questions should not be used on direct examination except as necessary to develop the witness's testimony. Leading questions may be used on cross and when a party calls a hostile or adverse witness.

Question 32

901(a) Authenticating or Identifying Evidence

Answer 32

To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.

Question 33

901(b) List of examples of evidence that satisfies the authentication requirement

Answer 33

(1) Testimony of a witness with knowledge (2) Nonexpert opinion about handwriting (3) Comparison by an expert witness or the trier of fact with an authenticated specimen (4) Distinctive Characteristics (5) Opinion about a Voice based on hearing the voice at any time under circumstances that connect it with the alleged speaker (6) Evidence about a Telephone Conversation that a call was made to the number assigned at the time to a person or business (7) Evidence about Public Records (8) Evidence About Ancient Documents or Data Compilations If its in a condition and location that is not suspicious and is at least 20 years old (9) Evidence describing a process or system showing that it produces an accurate result (10) Methods provided by a statute or rule

Question 34

902 Evidence that is self-authenticating

Answer 34

(1) Domestic Public Documents That Are Sealed and Signed (2) Domestic Public Documents That Are Not Sealed but Are Signed and Certified. (3) Foreign Public Documents (4) Certified Copies of Public Records. (5) Official Publications (book or pamphlet or something issued by public authority) (6) Newspapers and Periodicals (7) Trade Inscriptions (8) documents accompanied by a certificate of acknowledgment that is lawfully executed by a notary public (9) Commercial Paper and Related Documents. (10) Presumptions Under a Federal Statute. (catch all) (11) Certified Domestic Records of a Regularly Conducted Activity. (12) Certified Foreign Records of a Regularly Conducted Activity. (13) Certified Records Generated by an Electronic Process or System. (14) Certified Data Copied from an Electronic Device, Storage Medium, or File.

Question 35

1002 Best Evidence

Answer 35

Requirement of the Original: An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise

Question 36

1003 Best Evidence - Duplicates

Answer 36

A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original's authenticity or the circumstances make it unfair to admit the duplicate.

Question 37

1004 Best Evidence - Exceptions

Answer 37

An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if: (a) all the originals are lost or destroyed, and not by the proponent acting in bad faith; (b) an original cannot be obtained by any available judicial process; (c) the party against whom the original would be offered had control of the original; was at that time put on notice, by pleadings or otherwise, that the original would be a subject of proof at the trial or hearing; and fails to produce it at the trial or hearing; or (d) the writing, recording, or photograph is not closely related to a controlling issue. (collateral)

Question 38

1006 Best Evidence - Summaries to Prove Content

Answer 38

The proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court. The proponent must make the originals or duplicates available for examination or copying, or both, by other parties at a reasonable time and place. And the court may order the proponent to produce them in court.

Question 39

801 Hearsay

Answer 39

Hearsay is an out of court statement being offered for the truth of the matter asserted

Question 40

FRE 801(d)(2)(a) Party Opponent Exception

Answer 40

Statements that were made by the party in an individual or representative capacity are not hearsay

Question 41

801(d)(2)(b) Hearsay - Party Opponent - Adopted Statements

Answer 41

(1) Someone else makes statement; (2) Party hears the statement; (3) Party has FHK of the subject; (4) The party would have replied if he or she did not mean to accept the statement

Question 42

801(d)(2)(C) Party Opponent - Party Authorized Statements

Answer 42

(1) The statement is offered against the party; (2) the declarant was authorized to speak for the party at the time the statement was made; (3) the statement was made on a matter within the scope of the authorization

Question 43

801(d)(2)(D) Party Opponent - Agents or employee statements

Answer 43

(1) The statement is offered against the party; (2) the declarant was the adversary’s agent or employee; (3) the statement was made on a matter within the scope of that relationship; and (4) the statement was made while the relationship existed

Question 44

801(d)(2)(E) Party Opponent - Co-Conspirator Statements

Answer 44

(1) The statement is offered against a party; (2) that party and the declarant were co-conspirators; (3) the statement was made during the conspiracy; (4) the statement was made in furtherance of the conspiracy

Question 45

803(1) Present Sense Impression

Answer 45

(1) Statement must be contemporaneous with the event or condition; (2) Speaker must have personal knowledge; and (3) Statement must describe or explain the event or condition

Question 46

803(2) Excited Utterance

Answer 46

(1) Declarant perceived an external stimulus that is startling (2) Had an excited reaction (3) Made a statement that relates to the stimulus (4) Made while under the stress of the startling event

Question 47

803(3) Then-Existing Mental, Emotional, or Physical Condition

Answer 47

A statement of the declarant's then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant's will.

Question 48

List of Hearsay Exceptions

Answer 48

(1) Present sense impression (2) Excited Utterance (3) Then-existing mental, emotional, or physical condition (4) Statement made for medical diagnosis or treatment (5) Recorded recollection (6) Records of a regularly conducted activity (7) Absence of a Record of a Regularly Conducted Activity (8) Public Records (9) Public Records of Vital Statistics (10) Absence of a Public Record (11) Records of Religious Organizations Concerning Personal or Family History (12) Certificates of Marriage, Baptism, and Similar Ceremonies (13) Family Records (14) Records of Documents that Affect an Interest in Property (15) Statements in Documents that Affect an Interest in Property (16) Statements in Ancient Documents (17) Market Reports and Similar Commercial Publications (18) Statements in Learned Treatises, Periodicals, or Pamphlets (19) Reputation Concerning Personal or Family History (20) Reputation Concerning Boundaries or General History (21) Reputation Concerning Character

Question 49

803(4) Statement Made for Medical Diagnosis or Treatment

Answer 49

(A) is made for — and is reasonably pertinent to — medical diagnosis or treatment; and (B) describes medical history; past or present symptoms or sensations; their inception; or their general cause.

Question 50

803(5) Recorded Recollection

Answer 50

(1) Witness once had FHK of matter; (2) Now can’t remember matter fully (3) Witness made or adopted a statement (4) When matter was fresh in witness’s mind; and (5) The statement accurately reflected the event/ memory If elements are met: • Offering party may read into evidence • Opposing party may make it an exhibit for jury

Question 51

803(6) Records of a regularly conducted activity

Answer 51

(1) A record in any form of an act, event, condition, opinion, or diagnosis; (2) By or from information transmitted by a person with knowledge; (3) Made at or near the time of the thing recorded; (4) Each person transmitting did so as a regular practice of the business, organization, occupation, or calling; and (5) Record regularly kept • UNLESS the opponent shows that the source of information or method/ circumstances of preparation are untrustworthy

Question 52

803(7): Absence of Regularly conducted activity

Answer 52

(1) Evidence admitted to prove matter did not exist (2) Record regularly kept for matter of that kind (3) Opponent does not show possible source of untrustworthiness

Question 53

803(8): Public Records

Answer 53

For public records that • Set forth the activities of the office • Record matters observed while under a duty to report • Include factual findings from legally authorized investigation Except that the records are excluded if • Opponent shows source of info/ circumstances indicate lack of trustworthiness • Under (ii)→ Law enforcement observations offered against the criminal D (Note: D can offer against gov’t) • Under (iii)→ investigative reports offered against the criminal D (Note: D can offer against gov’t)

Question 54

803(10): Absence of a public record

Answer 54

Testimony—or a certification under FRE 902—that a diligent search failed to disclose a public record or statement if: (A) the testimony or certification is admitted to prove that • (i) the record or statement does not exist; or • (ii) a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind; and (B) in a criminal case, a prosecutor who intends to offer a certification provides written notice of that intent at least 14 days before trial, and the defendant does not object in writing within 7 days of receiving the notice — unless the court sets a different time for the notice or the objection.

Question 55

803(22) Judgment of a Previous Conviction

Answer 55

Evidence of a final judgment of conviction if: (A) the judgment was entered after a trial or guilty plea, but not a nolo contendere plea; (B) the conviction was for a crime punishable by death or by imprisonment for more than a year; (C) the evidence is admitted to prove any fact essential to the judgment; and (D) when offered by the prosecutor in a criminal case for a purpose other than impeachment, the judgment was against the defendant.

Question 56

803(18): Statements in Learned Treatises, Periodicals, or Pamphlets

Answer 56

(1) Statement is in a treatise, periodical, or pamphlet; (2) Is established a reliable authority by an expert, admission, or judicial notice; and (3) Shown to an expert witness on cross; or (4) Relied on by an expert on direct • If admitted, may be read into evidence but not received as an exhibit

Question 57

801(d)(1)(B)(i) Prior Consisten Statement

Answer 57

(1) Declarant testifies (2) Is cross-examinable concerning the prior statement (3) Statement is “consistent” w/ present testimony (4) Is offered to rebut charge of “recent fabrication or improper influence or motive” (5) Statement must precede the “recent fabrication,” influence, or motive

Question 58

801(d)(1)(C) Prior Statements of ID

Answer 58

(1) Declarant testifies (2) Is cross-examinable concerning the prior statement (3) Statement is one of identification of a person (4) The person identified was perceived earlier

Question 59

803(9) Public Records of Vital Statistics

Answer 59

A record of a birth, death, or marriage, if reported to a public office in accordance with a legal duty.

Question 60

804(b)(1) Declarant Unavailable - Former Testimony

Answer 60

Former testimony is not excluded by the rule against hearsay if: (A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and (B) is now offered against a party who had — or, in a civil case, whose predecessor in interest had — an opportunity and similar motive to develop it by direct, cross-, or redirect examination.

Question 61

804(b)(2) Declarant Unavailable - Dying Declaration

Answer 61

A statement under the belief of imminent death is not hearsay if in a prosecution for homicide or in a civil case, a statement that the declarant, while believing the declarant's death to be imminent, made about its cause or circumstances.

Question 62

804(b)(3) Declarant Unavailable - Statement Against Interest

Answer 62

Statement against interest is not excluded by the rule against hearsay if the declarant is unavailable and the statement is so contrary to ones interest or exposes the declarant to criminal liability and is supported by circumstances indicating its trustworthiness

Question 63

804(b)(4) Declarant Unavailable - Statement of Personal or Family History

Answer 63

self-explanatory

Question 64

804(b)(6) Declarant Unavailable - Statement Offered Against a Party That Wrongfully Caused the Declarant's Unavailability

Answer 64

A statement offered against a party that wrongfully caused — or acquiesced in wrongfully causing — the declarant's unavailability as a witness, and did so intending that result.

Question 65

804(a)(1) Criteria for being Unavailable - Privilege

Answer 65

self-explanatory

Question 66

804(a)(2) Criteria for being Unavailable - Refusal

Answer 66

Self-explanatory

Question 67

804(a)(3) Criteria for being Unavailable - Insufficient Memory

Answer 67

Self-explanatory

Question 68

804(a)(4) Criteria for being Unavailable - Illness

Answer 68

Self-explanatory

Question 69

804(a)(5) Criteria for being Unavailable - Absence

Answer 69

I think can get A exceptions

Question 70

Testimonial? Emergency call to a 911 operator (ongoing emergency)

Answer 70

No

Question 71

Testimonial? Affidavit given to police at domestic assault scene where known parties separated

Answer 71

Yes

Question 72

Testimonial? Talking to police away from crime scene after the crime committed but suspect at large with plans unknown

Answer 72

No

Question 73

Testimonial? Written certificate from lab analyst stating white powder found in D's possession was cocaine

Answer 73

Yes

Question 74

Testimonial? Written report of BAC explained by tech who did not conduct or observe test but is familiar with procedures

Answer 74

Yes

Question 75

Testimonial? An expert relying on non-testifying expert's report

Answer 75

No

Question 76

805 Hearsay within Hearsay

Answer 76

Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule

Question 77

807 Hearsay Residual Exception

Answer 77

Under the following circumstances, a hearsay statement is not excluded by the rule against hearsay even if the statement is not specifically covered by a hearsay exception in Rule 803 or 804: (1) the statement has equivalent circumstantial guarantees of trustworthiness; (2) it is offered as evidence of a material fact; (3) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and (4) admitting it will best serve the purposes of these rules and the interests of justice

Question 78

701 Lay Witness Opinion

Answer 78

(1) Based on FHK (meets 602 test) (2) Result of ordinary reasoning (3) Helpful to the jury in • (a) Understanding the witness’s testimony (shorthand statements) or • (b) determining a fact in issue (4) Not expert testimony under FRE 702

Question 79

602 Personal Knowledge

Answer 79

A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness's own testimony. (Doesn't apply to experts)

Question 80

704 Opinion on Ultimate Issue

Answer 80

(a) In general—Not automatically Objectionable→ An opinion is not objectionable just because it embraces an ultimate issue (b) Exception→ In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone

Question 81

703 Bases of an Expert's Testimony

Answer 81

Facts or data relied on can come from three possible sources: (1) Firsthand observation of witness; (2) Presentation at trial; (3) presentation of data to expert outside of court and other than by own perception

Question 82

702 Testimony by Expert Witnesses

Answer 82

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.