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162 Cards in this Set

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Should you ever choose an answer that says
(1) inadmissible because it is not the best evidence?
(2) inadmissible because of a dead man's statute?
(1) No! Never!

(2) No! Never!
Should you ever choose an answer that says
(1) inadmissible bceause the statement is self-serving and prejudicial?
(2) the statement is part of the res gestae?
(1) No! To be inadmissible, evidence must be "unfairly" prejudicial.
(2) No! Never!
What are the two types of relevance, and what are they?
(1) Logical relevance: evidence is logically relevant if it has ANY TENDENCY to make the existence of any FACT OF CONSEQUENCE MORE OR LESS PROBABLE that it would be without the evidence.
(2) Legal relevance: assuming evidence is logically relevant, court still has discretion to exclude if probative value is substantially outweighed by UNFAIR PREJUDICE, CONFUSION, or WASTE OF TIME.
For logical relevance, how do you determine if something is a
(1) "fact of consequence?"
(2) makes something "more or less probable?"
(1) A F.O.C. is either an element of the crime or the credibility of a witness.

(2) Use common sense.
Does a judge have discrestion to exclude relevant evidence?

If so, when?
Yes, if its probative value is SUBSTANTIALLY OUTWEIGHED by
What is probative value?

Is the credibility of the witness considered in determining P.V.?
It is the persuasive effect that the item will have on the jury regarding the F.O.C. it is offered to prove.

No. The credibility of the witness is NOT considered in determining P.V.
For a judge's discretionary exclusion of relevant evidence, what is

(1) Unfair prejudice: evidence will get the jury in the gut, rather than on a rational basis.
(2) Confusion: evidence leads to a mini-trial (where it requires its own witnesses, etc.), or where it is really a collateral issue.
(3) Misleading the jury: ex. a skewed photo makes knife look larger than it is, etc.
(3) Waste of time: undue delay, repetitive evidence... usually not the sole basis for exlclusion.
A party may not offer evidence of the other party's liability insurance in two circumstances. What are they?

What is the reasoning behind this rule?
(1) To prove culpable conduct
(2) To prove ability to pay

Reasoning: do not want to discourage liability insurance, since it aids in reimbursement of victims.
For what reason CAN a party introduce evidence of liability insurance?
In order to demonstrate anything OTHER THAN culpable conduct or ability to pay.

Ex. Agency, ownership, bias
May a party offer evidence of subsequent remedial measures or repairs as evidence of culpable conduct?
NO! The courts do not want to encourage repairs.

However, such evidence is admissible to prove ANYTHING ELSE, like ownership, control, feasibility of repairs, or impeachment.
May a party ever offer settlements, offers to settle, or pleas as evidence of culpability/guilt?

Does it make a difference whether the case is civil or criminal?
NO! One may never offer such statements OR RELATED STATEMENTS.

No! It makes no difference whether the case is civil or criminal.
When may one introduce a settlement offer or admission in order to prove culpability/guilt?
Yes. In two cases.

(1) When the statement occurred before a lawsuit has been filed or threatened.
(2) Where there is no dispute. For instance, when there is a suit on a promissory note and defendant says what he owes and what he will pay.
May a party ever offer evidence of payment or offers to pay medical insurance?

What is the scope of this rule?

However, the scope of this rule is quite narrow. One CAN offer evidence of comments made in conjunction with an offer to pay medical bills.
If defendant visits plaintiff in hospital and says, "I will pay your bills. I never should have left that roller skate in the dark hallway," can any part of the statement be admitted as evidence of defendant's culpability?
Yes. The statement "I never should have left that roller skate in the dark hallway" may be admitted.

The statement about paying medical bills may NOT be admitted.
What should you watch out for in questions involving offers to pay medical bills?
Settlement offers! If such an offer is involved, then ALL related statements are excluded, not merely the statement about paying hospital bills.
What is always worth mentioning when evidence is excluded because it is
(1) liability insurance
(2) a subsequent remedial measure
(3) a settlement offer
(4) an offer to pay medical expenses?
Mention the public policy behind the rule. The courts want to encourage behaviors that are beneficial to society.
In how many instances may one offer evidence of similar occurrence?

What are they?
(1) causation
(2) some prior accidents/claims: patterns of fradulent claims, pre-existing condition
(3) intent
(4) to rebut a defense of impossibility
(5) comparable sales to establish value
(6) habit
(7) routine business practice evidence
(8) industrial custom evidence to prove standard of care
Plaintiff, who was denied a job by defendant, offers evidence that in 100 other instances, when a qualified female applicant applied for a job, the defendant always hired a male. Can plaintiff introduce evidence of these similar past acts?
Yes, to prove intent. This is one of the 8 instances in which one may offer evidence of similar past acts.
What is the difference between habit and character evidence?
A habit is repeated specific conduct in a specific situation. Reporting on it has no moral or ethical tone.

Character evidence says something general about a person and makes a moral or ethical judgment.
Generally, may one offer evidence of

(1) habit
(2) character

to show action in conformity with it?
(1) habit = yes
(2) character = generally no. There are some exceptions to this ban, though.
What is "routine practice evidence?"
Routine practice evidence is evidence of what a business does in a habitual manner.
To what kind of cases is "industrial custome evidence" particularly relevant?
To tort cases.
When considering CHARACTER evidence, what four things should you always figure out right away?
(1) The PURPOSE of offering character evidence (there are 3, see other card)
(2) The METHOD or TECHNIQUE being used to prove character
(3) Whether it is a CIVIL or CRIMINAL case
(4) Whether the evidence proves a PERTINENT character trait
What are the three possible purposes for which one might offer character evidence?
(1) Because character is an issue in the case, as in defamation cases
(2) The evidence is circumstantial evidence of a person's conduct on the occasion in question
(3) The evidence will impeach or support the credibility of a witness
How many ways might one present character evidence?

What are they?

(1) Specific acts of conduct
(2) Reputation
(3) Opinion
May one offer character evidence in a civil case?
Generally NO.
(1) Character is an ISSUE in the case, as in defamation actions, child custody disputes, and negligent entrustment actions
(2) The claim is based on SEXUAL ASSAULT or CHILD MOLESTATION.
Where character is at issue in a civil case, what method may one use to prove it?
Any method: specific acts, reputation, and opinion.
In a CRIMINAL case, may the prosecution be the first to offer evidence of defendant's character?
NO, except in cases based on
(2) where DEFENDANT has offered evidence of VICTIM'S character, prosecution evidence that DEFENDANT has the SAME trait is admissible.
May a defendant offer character evidence about his own character?

What are the consequences of doing so?

But if defense does so, it "opens the door" for prosecution to REBUT with PERTINENT character evidence of its own.
For a criminal trial, in proving defendant or victim's character, does it matter what type of evidence the party offers - specific instances, opinion, or reputation?
On direct, the party may ONLY offer reputation and opinion.
On cross, the party may offer reputation, opinion, AND specific acts.
In a criminal case, may prosecution be the first to offer evidence of the VICTIM'S character?
No. However, once the defendant offers such evidence, the prosecution may
(1) rebut with character evidence about the VICTIM and
(2) rebut with character evidence about the DEFENDANT on the SAME TRAIT
In a criminal trial, if defendant offers evidence of victim's character, may the proseuction rebut with evidence of the defendant's character?

Are there any restrictions on this character evidence?

Yes. It must be evidence about the same character trait.
What should you watch out for in cases of character evidence?
Whether it is being offered to prove character or SOMETHING ELSE. Often, it will be admissible for some purpose other than character, such a specific instance to show state of mind in a self-defense argument.
May one ever offer character evidence of the victim in a case of rape or other sexual assault?
YES, but ONLY specific instances may be offered, and only to prove
(1) third party is source of semen or injury; OR
(2) prior acts of consensual intercourse between defendant and alleged victim;
Specific instances may be offered to prove anything other than character. List the cases where character evidence can be offered to prove something other than character.
(1) Motive
(2) Intent
(3) Mistake
(4) Identity - a signature crime
(5) Common Plan or Scheme - when an event is part of the SAME alleged wrongdoing
If character evidence falls under one of the M.I.M.I.C. uses, is it automatically admitted by the judge?
No. The judge retains discretion to exclude for unfair prejudice. In these cases, one must balance probative value against unfair prejudice.
Before a witness is COMPETENT to offer testimonial evidence, what four requirements must she meet?
(1) Personal knowledge
(2) Present recollection
(3) Communication
(4) Sincerity

Almost all other grounds for disqualification abolished.
Who may NEVER offer testimonial evidence?
The judge or a member of the jury!
For witness competency, what is the "personal knowledge requirement?"
It is the requirement that at least one of the 5 senses was involved in gathering the informoation presented to the court.
How can you differentiate between personal knowledge and hearsay?
Look to the phrasing of the testimony. If the W makes an assertion about something she did not perceive, it is lack of personal knowledge. If W reports something she was TOLD, it is hearsay (since she did in fact hear the original statement herself).
May one meet the "personal knowledge requirement" for witness competency even if one's perceptions are limited?
Yes! The witness must, however, reveal the imperfections in perception to the jury.
For witness competency, what is the "present recollection" requirement?
It requires that the witness testify from some current memory, not from some record regarding matters the witness once perceived by has now forgotten.
For witness competency, how does a witness fulfill the sincerity requirement?
By taking an oath OR making an affirmation to tell the truth.
Imagine a witness who was convicted of perjury, and is certifiably insane and a pathological liar. May he testify?
YES. However, each of these facts is available to impeach the witness's testimony.
What two requirements must one fulfill in making and objection to the form of a question?
It must be
What types of questions are NOT ALLOWED in the courtroom?
(1) Calls for a narrative answer
(2) Leading questions on direct examination of a non-adverse witness
(3) Questions that assume facts not in evidence
(4) Argumentative questions
(5) Compound questions - not clear which one the witness is answering!
What types of witness answers are not allowed in the courtroom?
(1) Narrative answers.
(2) Unresponsive answers. Ex. "What price did you and the defendant decide on?" "The defendant spends weekends torturing puppies."
May an attorney ever employ leading questions?
Yes. Leading questions are okay
(1) on cross examination
(2) with an adverse witness, even on direct examination
For use of documents in testimony, may the witness
(1) read from a report?
(2) use a report to refresh her memory?
(1) No! All written materials are hearsay.
(2) Yes! In fact, a lawyer may use any material to refresh the memory of a witness. However, W must say "I remember," and lawyer must produce the item to the other side, who can then enter it into evidence.
What may an attorney do when a document fails to refresh the memory of a witness (such as a report to an emergency room doctor)?
As an exception to hearsay, the attorney may READ the document into evidence IF
(1) W once had PERSONAL knowledge of the facts
(2) The doc was MADE by W or under W's direction or was ADOPTED by W
(3) Doc was written or adopted at a time when the facts were FRESH in W's memory
(4) Doc was ACCURATE when made
(5) W now has INSUFFICIENT RECOLLECTION to testify as to the matters contained in the doc.
Is opinion evidence normally admissible?
No! It is normally inadmissible. The personal knowledge requirement usually limits Ws to things they directly perceived, not thing they interpreted.
Are there any exceptions to the general ban on opinion evidence?
(1) Lay opinion: must be RATIONALLY BASED on the W's PERCEPTIONS and HELPFUL to the jury. Cannot be scientific or specialized.
(2)Expert opinion: HELPFUL to jury, Q QUALIFIED, W must believe in opinion to a REASONABLE DEGREE OF CERTAINTY, opinion must be supported by PROPER FACTUAL BASIS, opinion must be BASED ON RELIABLE PRINCIPLES that were RELIABLY APPLIED.
In what general areas are lay opinions often admitted?
Speed of auto, sanity, intoxication, emotions, value of W's property.

A lay W may never give a legal opinion (he was negligent).
What does it mean for a lay opinion or expert opinion to be "helpful" to the jury.
It tells the jury more than they could figure out for themselves from a description of a primary W's present sense impressions.
For an expert witness, what counts as "qualifications?"
They can be either academic or practical experience qualifications. However, the area of qualification MUST match the area of opinion.
To testify as to a matter, must an expert be POSITIVE of his opinion?
No. He only needs to have a reasonable degree of certainty.
Upon what may an expert base his opinion?
Two things.
(1) Admitted evidence
(2) Personal knowledge
(3) Inadmissible evidence reasonably relied upon. Occurs when this type of evidence is routinely relied upon in the field.
What does it mean for an expert opinion to be "based upon reliable principles reliably applied to the facts?"
When evidence is scientific, it must be based upon a test that is
(1) published in scientific journals
(2) has a low error rate
(3) is subject to retesting
(4) has a reasonable level of acceptance
For an expert to offer a scientific opinion, must the basis of that opinion have general acceptance?
No. It only needs to have a "reasonable level of acceptance."
For expert opinions, may an expert consult a treatise?
Yes. Like all texts, teatises are hearsay. However, there is an exception for them because they are a reliable source.

Treatises may be READ to the jury, though NEVER GIVEN to the jury.
What type of evidence may an attorney use to impeach a witness?
(1) Statements from the mouth of the W on cross
(2) Extrinsic evidence (everything else)
Can a party cross-examine witnesses who have testified against him?
Yes, he has an ABSOLUTE right to do so, but he must

If there is no chance to cross, he can move to STRIKE or for a MISTRIAL.
When a party is cross-examining a witness who has testified against him, does he have to stick to the scope of the original direct?
Technically, yes. However, he may aks the judge to allow him to take the witness on DIRECT and then ask new questions. For these questions, he must obey the rules of direct examination.
May prosecution or defense offer evidence to support credibility?
Only if the credibility of the witness has been attacked first.
How many exceptions are there to the general ban on bolstering a witness's credibility?

What are they?
(1) Timely complaint sometimes OK

(2) Prior identification made by a W OK not only to bolster W's testimony, but also as substantive evidence that the identification was correct.

(3)Prior consistent statements admissible if made before BRIBE or INCONSISTENT STATEMENT. This is NOT HEARSAY and is admissible for all purposes.
What three things should you consider when faced with the propriety of impeaching a witness?
(1) Is the source extrinsic evidence OR cross of the witness?
(2) If extrinsic, is it admissible given the impeachment technique?
(3) Are there any additional foundation requirements?
How many impeachment techniques are there?

What are they?
(1) Contradiction;
(2) Prior inconsistent statement;
(3) Bias, interest, or motive;
(4) Prior convictions;
(5) Misconduct bearing on truthfulness;
(6) Reputation and opinion regarding truthfulness.
If a witness is testifying, and he lies as to some fact that is not a "fact of consequence," may you use extrinsic evidence to impeach him on this point, thereby undermining his credibility?
NO. Extrinsic evidence is inadmissible to impeach on a collateral matter.
For witness testimony, what is a collateral matter?

May you use extrinsic evidence to impeach a witness on a collateral matter?
A collateral matter is some fact NOT material to the issues in the case that says NOTHING about credibility other than to contradict.

Witness claims he saw the murder while on his way home from Grandma's. Defendant offers testimony of another W that first W was on his way home from a bar, where he had spent the last six hours drinking steadily. Admissible?
Yes. Why? Even though it is not related to a material issue in the case, the evidence is DIRECTLY related to the witness's credibility.
May one introduce a prior inconsistent statement to impeach a witness?

What evidentiary issue lurks in the background of this situation?
Yes, but for impeachment only.

The impeaching statement is actually HEARSAY, but it is admissible for the LIMITED purpose of impeachment, and the jury is instructed to disregard its contents.
Is there any foundation requirement for offering extrinsic evidence to impeach a witness?
Yes. The witness must have an opportunity to explain or deny the extrinsic evidence.
May one use a statement given under oath as evidence to impeach a witness?

Is that statement hearsay?

It is not hearsay since it was made under oath. It can therefore be used for ANY purpose, and the jury need not get an instruction against its content.
Could the defense ask the witness, "Isn't it true that you were also arrested for drug dealing but offered a plea bargain for your testimony here?"

Could defense normally ask about an arrest?
Yes. Why? It shows bias on the part of the witness.

Defense could not normally ask about an arrest, since that it conduct of the police, not the witness.
Is there a foundation requirement for extrinsic evidence offered to prove a witness's bias, interest, or motive?
Yes. The witness must have the opportunity to explain or deny the evidence.
What kind of convictions can an attorney offer in court to impeach the credibility of a witness?
Less than 10 years since convicion or release:
(1) All felonies and misdemeanors relating to false statements.
(2) Felonies for crimes not involving false statements if probative value outweighs prejudice.
(3) If MOREthan 10 years old, conviction may only be admitted if judge thinks its probative value outweighs prejudice.
Three categories!
May one use extrinsic evidence in order to impeach a witness with evidence of a prior conviction?
YES. There are no limits on the type of evidence one may use to show a prior conviction.
May one impeach a witness with prior misconduct that bears on truthfulness, even if it did not lead to a conviction?
Yes! The conduct merely must bear on truthfulness.
May one impeach a witness by asking about prior arrests?
No! Never.
To impeach a witness with a general prior act of misconduct (like lying on a driver's license), may one use extrinsic evidence?
May one impeach a witness with evidence of their reputation and others opinions about his lack of truthfulness?

May one use extrinsic evidence to do this?
Yes! This is in fact a form of character evidence that can impeach.

One may use extrinsic evidence to do this.
What is hearsay?
Hearsay is an OUT OF COURT STATEMENT offered for the purpose of establishing the TRUTH OF THE MATTER ASSERTED in that statement.
When do words have independent legal sigificance, and therefore not qualify as hearsay?
(1) Contract formation
(2) Defamation
(3) Adverse possession and "openly claiming" ownership of land
(4) Dispute over chattels. When handing ovre thing, any statement made at the time of transfer about transfer
When are statements that SEEM like hearsay nonetheless NOT ASSERTED to establish the truth of the matter asserted?
(1) words have independent legal significance
(2) to show effect on listener
(3) to show knowledge
(4) as circumstantial evidence of state of mind
Is it hearsay if a statement

(1) shows circumstantial evidence of state of mind?
(2) shows direct evidence of state of mind?
(1) No. For ex., "I am dracula" to show insanity.
(2) Yes. For ex., "I am insane." This may still get in under another exception.
Can a statement be hearsay if a witness is recounting his own past statement?
How many exemptions are there to the hearsay rule?

What are they?
(1) Prior consistent statement before a bribe;
(2) Prior inconsistent statement under oath;
(3) statement of identification of person made after perceiving person;
(4) transcript of testiony given under oath at trial OR grand jury proceeding;
(5) Admission of a party opponent.
What is an admission of a party opponent?
It is a statement by a party, or by someone whose statement is attributable to the party, offered by a party opponent.
For a statement to be an "admission of a party opponent," does it have to be a statement against the party's interest?
No! In fact, at the time of statement, the party may think they are helping themselves.
Are there any special exemptions associated with the "admission of a party opponent" exemption?
Yes, since they are not hearsay, these statements are not subject to the personal knowledge requirement or opinion rule.
May a party make an admission "of a party opponent" via another person?
Yes. That is called vicarious party admissions. They include a
(1) statement by employee of party concerning matter within scope of employment and made during employment relationship
(2) adoptive admissions
(3) co-conspirator statements
What are the exceptions to the hearsay rule?
(1) Former testimony
(2) Statement against interest
(3) Dying Declaration
(4) Statement of personal or family history
(5) State of mind
(6) Business records
(7) Catch-all exceptions
For which hearsay exceptions must the declarant be unavailable?
(1) Former testimony
(2) Statement against interest
(3) Dying declaration
(4) Statement of personal or family history
For hearsay purposes, when is a declarant "unavailable?"
Declarant is unavailble if (1) the court exempts the declarant from testifying due to privilege (2) declarant refuses to testify despite a court order (3) declarant's memory fails (4) declarant is dead or sick (5) proponent of statement cannot procure declarant's attendance by process or other reasonable means.
When may one offer former testimony in exception to the ban on hearsay?
There are three requirements
(1) party against whom testimony is offered had, during earlier proceeding, and OPPORTUNITY to exmaine that person and a similar MOTIVE to conduct examine OR
(2) in a CIVIL case, party against whom testimony is now offered is a SUCCESSOR IN INTEREST to a party in the earlier proceeding who had opportunityt and SIMILAR MOTIVE to examine
May the defendant introduce testimony from an earlier action?
Yes, if it is a civil case and they are a "successor in interest" to the plaintiff in the 1st case.
May a party use the testimony of an expert in a former proceeding to avoid paying his fee a second time?
No! The declarant must actually be unavailable!
What is a "declaration against interest?"

What if it is offered to exculpate the accused?
It is an EXCEPTION to the hearsay rule.
(1) Unavailable declarant
(2) When made, was against financial interest of declarant or would have subjected declarant to criminal liability

AND if offered to exculpate the accused, there must also be corroborating evidence before the statement will be admitted.
What is a "dying declaration?"
It is an EXCEPTION to the hearsay rule.
(1) Declarant is unavailable
(2) Made by a person who believes he is about to die
(3) Statement describes the circumstance of his death
When may one admit a "dying declaration" in criminal cases?
ONLY in homicide cases. They are otherwise inadmissible.
How many "state of mind" exceptions are there?

What are they?
(1) Excited utterance;
(2) Present sense impression;
(3) Declaration of then existing physical or mental condition;
(4) Statement of past or present mental or physical condition.
What is an "excited utterance?"
It is an EXCEPTION to the hearsay rule.
(1) Statement relates to startling event or condition;
(2) Made while declarant still under stress of excitement caused by event or condition.
What is a "present sense impression?"
It is an EXCEPTION to the hearsay rule.
(1) Statement describing or explaining an event or condition;
(2) Statement made while declarant was perceiving the event or condition, or immediately thereafter.
What is a "declaration of then existing physical or mental condition?"
It is an EXCEPTION to the hearsay rule.

They are declarations of then existing physical or mental conditions or state of mind.

These statements are admissible to show STATE OF MIND.
Is a memory a "state of mind" for a "declaration of then existing physical or mental condition" exception to hearsay?
Nope! Never.
As an exception to hearsay, when may the court admit a "statement of past or present mental or physical condition?"

Must the statement come directly from the patient?
When the statement is made for medical diagnosis. Why? These statements are usually reliable.

No. It can go through, say, a child to a parent to a doctor. Any statement of child or parent as to child's physical condition would fall under the exception.
Are business records hearsay?

May one ever admit them as evidence?
Business records ARE hearsay.

There is a "business records" EXCEPTION to the hearsay rule, if
(1) Record is kept in course of regularly conducted business activity;
(2) Made at or near time of event described;
(3) Made by a person with knowledge;
(4) Regular practice of business to make such a record.
What is so unique about the "business record" exception to hearsay?
It can cover multiple layers of hearsay. So long as they fall within the scope of "business record," you need not analyze each layer of hearsay.
Could one admit a business record that states, "Patient admitted with broken leg. Patient reports being hit by a car driven by someone with a suspended license?"

The business record exemption only applies to statements that are agents of the business.
For hearsay, what is the "catchall exception?"
The judge has discretion to admit evidence, even if it doesn't fall into another hearsay exception, if
(1) It appears really reliable, and
(2) It is very important.
What issue must one always consider when dealing with tangible evidence?
What is the burden of proof for establishing the authenticity of tangible evidence?
"Sufficient to support a finding."

This is a very LOW standard of proof.
How may one authenticate a signature?
Six ways.
(1) Admission of defendant.
(2) Eyewitness testimony. W saw defendant sign name.
(3) Expert opinion. Handwriting expert compares signature with genuine example.
(4) Lay opinion. Lay W has seen defendant sign his name elsewhere and verifies the signature.
(5) Circumstantial evidence: plaintiff testifies he mained offer to defendant at his home and 4 days later this letter arrived, postmarked defendant's home town, made specific reference to offer letter, and purported to accept it.
(6) A genuine exemplar. Offer into evidence, let jury decide.
What is the "ancient documents" rule?
A doc is considered authenticated if it is
(1) 20+ years old
(2) Does not have any facial irregularities (like erasures)
(3) Was found in a place of natural custody
What are "self-authenticating writings?"
Writings for which no authentication is needed.
(1) Certified copies of public dpcs;
(2)Acknowledged docs (ex. original signature is attested before notary to be valid);
(3) Official publications
(4) Business records
(5) Trade inscriptions
(6) Newspapers and periodicals
Who may authenticate a photograph of a certain area?
Anyone who can testify that the item is what you claim it to be.

If the photo is supposedly of a specific time, though, only the photographer could authenticate it.
What is a "non-unique item?"

How may one authenticate them?
They are facially indistinguishable from other like itmes (ex. white powder).

To authenticate, must lay a CHAIN OF CUSTODY demonstrating that this item is what proponent claims it to be.
Must one establish a chain of custody if an item is facially unique?
No. The arresting officer, for instance, can attest to its authenticity.
When does the "best evidence rule" apply?
It applies ONLY where evidence is offered to prove the CONTENTS OF A WRITING.
When is evidence being offered to PROVE THE CONTENTS OF A WRITING?
(1) When the case turns on a legal instrument. Contracts, wills, deeds.
(2) When knowledge is obtained from the writing. When the contents of the writing are crucial to establishing, for ex., motive.

(1) Collateral documents rule - where document is of minor importance in the case and contents are not in dispute
(2) Voluminous documents - where original ARE available for inspection and W testifies as to their overall contents.
Assuming that the best evidence rule applies, HOW may the contents of a writing be proven?
(1) Producing the originals or duplicates of the originals (by a machine or carbon copy, no human re-copying).

Exception: where there is a genuine question as to the authenticity of the original, a duplicate will not suffice.

(2) If original LOST or DESTROYED, testimony OK, but only if no bad faith by proponent of testimony.
What is the attorney-client privilege?
It privileges a communication BETWEEN an attorney and client (or thier representatives) intended by a client to be CONFIENTIAL and made to FACILIATATE rendering of PROFESSIONAL legal services.

It is enforced unless WAIVED by the client.
Is there any attorney-client privilege if the client is a corporation?
Yes. It applies to communications from employees/agents who are authorized by the corporation to make the communications to the lawyer.
For attorney-client privilege, who counts as a representative of an attorney?
ANYONE hired by the attorney to aid in the case. This includes doctors, secretaries, experts, etc.
Is the attorney-client privilege broken by an eavesdropper?
No. Even if overheard by an eavesdropper, a communication would still be privileged if INTENDED by the client to be confidential.
What are the exceptions to the attorney-client privilege?
There are TWO of them.
(1) Where professional services are sought to further CRIME or FRAUD
(2) Where 2 or more parties consult and attorney on a MATTER OF COMMON INTEREST and the communication is offered by ONE OF THESE PARTIES against another.
What is the doctor-patient, or psychotherapist-patient privilege?
It states that a patent has a privilege to prevent disclosure of information CONFIDENTIALLY conveyed to a PHYSICIAN or PSYCHOTHERAPIST for the PURPOSE OF OBTAINING DIAGNOSIS OR TREATMENT.
If a patient visits a doctor for him to testify, are his comments privileged?
No... not for that trial or even for later trials.
What is the scope of the doctor-patient or psychotherapist-patient privilege?
The privilege applies ONLY to comments pertinent to medical treatment.
Are there any exceptions to the doctor-patient, psychotherapist-patient privilege.
YES! Three huge ones:
(1) Does NOT APPLY in criminal cases;
(2) Does NOT APPLY in malpractice suits between doctor and patient;
(3) Does NOT APPLY where patient puts his physical condition in issue, as in a personal injury suit.
What are the two types of spousal privilege?
(1) Spousal testimonial privilege - applies in CRIMINAL cases only, and permits W to refuse to testify against his/her current spouse as to ANYTHING.
(2) Spousal confidential communication privilege - may apply in ANY case and protects CONFIDENTIAL spousal communications made DURING MARRIAGE.
Who "holds" the spousal testimonial privilege?
The person being asked to testify. Therefore, if that W wants to testify, the spouse cannot prevent her.
Do the spousal privileges apply to cases where one spouse is charged with a crim against the other spouse or against one of their children?
Who "holds" the spousal confidential communication privilege?
Both spouses. If the statement was made during a valid marriage, then both spouses must agree to the testimony.
What is "judicial notice?"
Judicial notice is the process of establishing facts without presenting evidence.
Which facts are appropriate for "judicial notice?"
Facts not subject to reasonable dispute because they are
(1) Generally known within territorial jurisdiction OR
(2) Capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.
What is the procedure for taking judicial notice of a fact?
There are four considerations
(1) A party may REQUEST judicial notice;
(2) If not requested, the court has DISCRETION to take judicial notice;
(3) If requested in a CIVIL case, court instructs jury it MUST accept noticed fact as conclusive;
(4) If requested in a CRIMINAL case, court instructs jury it MAY, but is not required to accept judicially noticed fact.
When may the court take judicial notice of a fact?
At any time, even on appeal/
What is the difference between judicial notice of a fact in a civil trial and in a criminal trial?
In a civil trial, the court instructs the jury that it MUST accept the fact as conclusive; in a criminal trial, the court instructs the jury that ti MAY accept the fact as conclusive, but that it is NOT REQUIRED to do so.
A witness testifies before a grand jury. Can their testimony be offered at a later trial as
(1) non-hearsay?
(2) an exception to the hearsay rule?
No! Neither.

Why? Grand jury proceedings do not afford an opportunity for cross-examination, so there is no opportunity for the opposing party to develop the witness's testimony.
Is the record of a conviction hearsay?

Is there any exception that makes it admissible?

However, FELONY convictions are admissible in both criminal and civil actions to prove any fact ESSENTIAL to the judgment.
Does the prosecution or defense have a right to conduct a cross examination as she sees fit?
No. While the prosecution and defense has an absolute right to cross examination, the EXTENT or SCOPE of cross examination is a matter of judicial discretion, exercised to aid in ascertaining the truth, being efficient, and protecting witnesses from harassment and undue embarassment.
Does the "past recollection recorded" exception require the unavailability of the declarant?

What is the requisite "foundation" for introduction of this evidence?

(1) The W at one time had personal knowledge of the facts in the writing;
(2) the writing was made by or under the direction of the W or has been adopted by him;
(3) the writing was timely made when the matter was fresh in the mind of the W;
(4) the writing is accurate;
(5) the W has insufficient recollection to testify fully and accurately.
What is a statement by an employee an admission of a party-opponent?
It is a statement by an agent concerning a matter within the scope of his agency, made during the existence of the employment relationship.
As an exception to hearsay, may business records contain opinions?
Yes, so long as they are given in the regular course of business.
Who determines whether an expert witness is properly qualified?
The judge, as a preliminary fact.
May one question the credibility of an scientific expert witness by quizzing him on the contents of a reliable scientific authority in his field?
Yes! The reliability of an authority may be established by
(1) The direct testimony or cross examination admission of the expert
(2) The testimony of another expert
(3) Judicial notice
When must the proponent of physical evidence present a chain of custody as authentication?
When the evidence is of a type that is likely to be confused or can be easily tampered with.
Can a judge call and interrogate witnesses?
Yes! A judge may call witnesses upon her own initiative and may interrogate any witnesses who testify.

The judge has total discretion in this area, so long as he shows no partisanship for a particular side.
As an exception to hearsay, what is a party admission?
It is a statement made, or an act done, that amounts to a prior acknowledgement by one of the parties to an action of a relevant fact.
What kind of admission is a plea of guilty?
It is a formal judicial admission.
Can one ever introduce withdrawn guilty pleas, pleas of nolo contendere, offers to plead guilty, or evidence of statements made in negotiating such pleas as evidence?
NO! They are not admissible in any proceeding. However, there is no prohibition against admitting a regular old guilty plea.
Do records prepared in anticipation of litigation ever fall within the business records exception to the hearsay rule?
No, generally not. For instance, a report made for insurance purposes is generally not considered a business record, since it is an unusual occurrence.
When can one make a motion to STRIKE?
Only where there was no basis or opportunity for an earlier objection. Usually, this is after the question was asked and before it was answered.
When someone is examined for insurance purposes, is that examination privileged by doctor-patient privilege?
Generally no, since it not for "diagnosis and treatment," and to be privileged, the information must be acquired by the physician in the course of treatment.
Can the credibility of a witness be impeached by extrinsic evidence of specific acts on cross?
No - when you introduce a new witness, it becomes direct, and one may NEVER introduce specific acts of misconduct.
Who decides if certain evidence is relevant?

Who decides whether hearsay falls within an exception to the rule?

In making preliminary determinations of law, what kind of evidence may the judge consider?
The jury.

The judge.

The judge may consider any nonprivileged relevant evidence, even though ti would not otherwise be admissible under the rules of evidence.
Can an attorney ever use leading questions on direct examination?
Yes, the trial court has discretion to permit leading questions in order (1) to refresh the recollection of a witness or (2) to establish preliminary matters.

One may also use leading questions if the witness is hostile.
Can an expert witness testify as to an opinion without disclosing the underlying facts or data?
When something is entered into a police report, does it stop being hearsay?
No! Even if a statement is entered into a police report, it is still hearsay.
Does the attorney-client privilege extend beyond the death of the client?
No. The attorney-client privilege terminates upon the death of the client.
Does the spousal privilege for confidential communications apply to both civil and criminal cases?
Yes. It applies to both civil and criminal cases.