Evidence - Nv Bar Exam

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Logical Relevance

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Evidence is logically relevant if it is probative of a material fact.

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Legal Relevance

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The court has broad discretion to exclude relevant evidence if it is not legally relevant. NV: Court must exclude if probative value substantially outweighed by unfair prejudice or confusion and may exclude if probative value substantially outweighed by waste of time. FRE: discretion to exclude if probative value outweighed by unfair prejudice, waste of time or confusion. Unfair surprise NOT valid ground.

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Social Policy Exclusions

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Proof of insurance: inadmissible to show liability or fault or to show ability to pay. Admissible to show ownership or control if in dispute.

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Social Policy Exclusions

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Subsequent Remedial Measures: inadmissible to prove liability or fault. Inadmissible to prove defect in product or design; need for warning/instruction. Admissible to show feasibility of repair or ownership/control if in dispute. Admissible to prove opposing party has destroyed evidence.

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Social Policy Exclusions

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Settlement Offers: offers to settle disputed claims are inadmissible to encourage parties to settle disputes w/out litigation. Any statement made in conjunction w/ the offer to settle is also inadmissible. Includes guilty pleas/withdrawn pleas. There must be some indication that the party is going to make a claim and the claim must be in dispute as to liability or amount.

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Social Policy Exclusions

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Payment or Offers to Pay Medical Expenses: inadmissible in order to encourage parties to act as good samaritans. Only the offer itself is inadmissible; statements made in conjunction w/ the offer to pay are admissible. NV: collateral source of payment is inadmissible for any purpose.

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Testimony Evidence

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If testimony, look for Character Evidence and Opinion Evidence.

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Character Evidence

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2 parts: Impeachment & Substantive.

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Character Evidence - Common Impeachment Techniques

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Prior Inconsistent Statement: In NV, PIS are admissible for impeachment purposes, and are admissible non-hearsay, even if not given under oath. FRE: PIS if offered to prove the truth of the matter, is hearsay unless given under oath. May introduce via cross-exam or EE. If EE, proper foundation must be laid: the W must at some point be given an opportunity to explain or deny the statement.

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Character Evidence - Common Impeachment Techniques

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Prior Conviction of Crime: In NV, a W can be impeached w/ evidence that the W has been convicted of any felony (no misdemeanors), but a court has discretion to exclude evidence if unduly prejudicial (403 balance). No discretion to exclude if conviction is for perjury or false statement. FRE: misdemeanors ok if regarding false statement or perjury. FRE: felonies not involving false statement ok but may exclude for unfair prejudice. If more than 10 years have passed from the date of conviction, the conviction is too remote and not admissible for impeachment purposes. May be proved by direct or cross-exam or by introducing a certified copy of record of conviction. May not be used to impeach if W has been pardoned and 1) pardon is based on innocence; or 2) the person pardoned has not been convicted of a subsequent felony. No foundation requirement for EE.

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Character Evidence - Common Impeachment Techniques

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Bad Acts (specific instances of misconduct): a W can be cross-examined regarding prior bad acts including acts involving dishonesty so long as the questioning is in good faith. EE is not admissible to prove the prior bad act. If W denies the bad act in response to the Q, no further evidence is admissible. Does not include asking about arrests - arrest itself is not a bad act.

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Character Evidence - Common Impeachment Techniques

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Sensory Deficiencies: a W may be impeached by showing, either on cross-exam or by EE that his faculties of perception and recollection were so impaired as to make it doubtful that he could have perceived those facts. May also be impeached by showing he had no knowledge of the facts to which he testified.

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Character Evidence - Common Impeachment Techniques

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Impeachment on collateral matter: where a W makes a statement not directly relevant to the issue in the case, the rule against impeachment on a collateral matter applies to bar his opponent from proving the statement untrue by either EE or by a PIS.

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Character Evidence - Common Impeachment Techniques

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Prior Consistent Statement: a party may not ordinarily rehabilitate a W by showing a PCS. True even when the W has been impeached by showing a PIS. But if the testimony of the W has been attacked by an express or implied charge that the W is lying or exaggerating b/c of some motive, a PCS is admissible to rebut this evidence. PCS is admissible for all purposes if made before bribe or inconsistent statement. Otherwise, inadmissible for any purpose.

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Character Evidence - Common Impeachment Techniques

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Bias and Prejudice: evidence that a W is biased or prejudiced against one of the parties is always admissible for impeachment purposes. EE admissible but foundation req: W must be given a chance to explain or deny his bias/interest before it can be admitted. *tends to show the W has a motive to lie.

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Substantive Character Evidence- Rules of Introduction

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Prosecution cannot be first to offer character evidence to prove conduct. Exceptions: 1) may offer in case in chief in criminal case if offered for some purpose other than to show propensity: MIMIC--> motive, intent, mistake or absence of mistake, identity (if costume must show similarity and uniqueness), common plan or scheme. Always discretion to exclude MIMIC so always discuss unfair prejudice, i.e., say - shows motive, but gives rise to character, so maybe unfair prejudice or may confuse jury (jury may misuse it b/c admissible for one purpose, but not another). 2) may offer first in civil cases of sexual assault or child molestation to show D committed prior acts.

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Substantive Character Evidence - Rules of Introduction

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Criminal case: CE admissible if D opens the door by putting on evidence of his good character. NV: opinion ok, but no reputation.

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Substantive Character Evidence - Rules of Introduction

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Once D opens door by introducing CE, the prosecution may rebut it by: cross-examining the W regarding the basis for his testimony, including whether he knows or has heard of specific instances of the D's misconduct. But on direct - reputation and opinion only.

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Substantive Character Evidence - Rules of Introduction

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Evidence must always concern a pertinent trait. E.g., if D opens door by testifying he is nonviolent, prosecution on rebuttal cannot ask about dishonesty - violence is pertinent here. FRE only: after court admits defense evidence of V's violent character, prosecution offers evidence of D's violent character - admissible.

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Substantive Character Evidence - Rape Shield Statute

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Criminal Rules: reputation and opinion evidence inadmissible. Specific instances of alleged V's conduct admissible only to prove: 1) third party is source of semen or injury; or 2) prior acts of consensual intercourse between D and alleged V.
Civil rules: reputation, opinion, and specific instances ok if probative value substantially outweighs unfair prejudice and, in the case of reputation evidence, P put her reputation in issue.
NV: evidence of alleged V's prior sexual conduct is admissible in a criminal case if relevant to prove consent and probative value is not outweighed by unfair prejudice. NV also makes admissible prior incidents of domestic violence and expert testimony concerning effect of domestic violence, to prove effect of abuse on mental state of V for purposes of showing her state of mind or to show she acted in self-defense.

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Character Evidence - Opinion

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A lay W is allowed to testify in the form of an opinion when: 1) the opinion would be helpful to the trier of fact; 2) the opinion is based on the perception of the W; and 3) the subject is a proper subject for lay opinion. A lay W is generally allowed to give an opinion on an area, that is within the ordinary understanding of a lay person (weather, speed, distance, intoxication, sanity, handwriting). May not give opinion as to ultimate issue - reserved for jury.

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Character Evidence - Opinion

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Expert Opinion: an expert may state an opinion or conclusion, provided the following conditions are satisfied: 1) the testimony must assist the trier of fact; 2) the testimony is based on matters which an expert would rely; and 3) the W must be qualified as an expert.

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NV Essay ADV suggestion for Outlining Expert Opinion

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1st heading: appropriateness of subject matter: expert testimony is admissible if the SM is one where specialized knowledge would assist the jury in understanding the evidence or determining a fact in issue. 2nd heading: proper factual basis for opinion: in addition, an expert may form an opinion based on material studied before or during the trial, provided it is the type upon which an expert would rely. Third heading: Qualifications: to testify as an expert, a person must have special knowledge, experience or training sufficient to qualify him as an expert regarding the proffered testimony.

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Documentary Evidence

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Look for Authentication & Best Evidence Rule.

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Documentary Evidence - Authentication

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Every item of non-testiomonial evidence must be authenticated as genuine - that it is what the proponent of that evidence claims it to be. Burden of proof is low.

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Documentary Evidence - Authentication

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Ways evidence can be authenticated. ALECA G.
Admission (D/W admits);
Lay Opinion;
Expert Opinion;
Circumstantial Evidence;
Ancient Documents Rule: authenticity is established if: 1) document is 20 years old or more; 2) does not on its face present any irregularities; and 3) was found in a place of natural custody;
A genuine exemplar

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Documentary Evidence - Self-Authenticating Writings

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For certain writings, authentication is unnecessary. These include certified copies of public documents (deeds); acknowledged documents (documents where signature is notarized); official publications (e.g., govt pamphlets); newspapers, periodicals; business records; and trade inscriptions (tag or label that purports to have been attached in course of business and indicates ownership, control or design).

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Documentary Evidence - Authentication

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Photos: watch for PK problem. Does fact testified to = fact perceived?
Authentication of non-unique items: to authenticate items that are facially indistinguishable from other like items, proponent must lay a chain of custody determining that this is the specific item proponent claims it to be. Don't do this for items that are facially unique.

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Best Evidence Rule

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When proving the contents of a writing, the original or a duplicate must be produced. Exceptions:
1) voluminous records: can be summarized if originals available for inspection.
2) original lost or destroyed (no bad faith) - D cannot proffer it if he destroyed in bad faith;
3) fact exists independent of writing;
4) writing is collateral to litigated issue;
5) NV: the content of records of a casino or hotel, or banking institution, may be proved by a copy of the record which is authenticated by a custodian of the records of a casino, hotel, or bank in a signed affidavit.

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Best Evidence Rule

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When is evidence being offered to prove contents of a writing? 1) case turns on contents of legal instrument; and 2) knowledge obtained from writing.
If rule applies, originals and duplicates are admissible to prove the contents of the writing. Originals = computer printouts, and in the case of public documents, certified copies are considered originals. Duplicates = copy of original produced by same impression that produced the original. e.g., carbon copy, photocopier or camera - not handwritten. Remember exception: evidence is not admissible where there is genuine Q as to the authenticity of original.

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Hearsay

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Hearsay is an out of court statement offered to prove the truth of the matter asserted.

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Hearsay Documentary Exceptions - BOP

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Business Records: business records are entries made in the regular course of business by a person who has a business duty to accurately record the information and who either has personal knowledge or receives the information from one with personal knowledge and a business duty to accurately report. The entry has to have been made at or near the time of the transaction or event.

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Hearsay Documentary Exceptions - BOP

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Official Records: Records and reports of a public agency or office are admissible if the record was made at or near the time of the occurrence by one with a duty to accurately record the information.

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Hearsay Documentary Exceptions - BOP

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Past Recollection Recorded: a writing made at or near the time of an occurrence, which was an accurate statement at the time it was recorded, is admissible as a past recollection recorded if the person no longer recalls an incident or occurrence. The writing will be read into the record unless the other side wishes to introduce it as an exhibit.

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Hearsay Exceptions Which do not Require the Declarant to be Unavailable BEPS

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Statement of Bodily Conditions: a declarant's statement regarding his present bodily condition is an exception to the hearsay rule. Likewise, a declarant's statement of his past bodily condition is also within the exception when the statement was made for purposes of diagnosis or treatment.

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Hearsay Exceptions Which do not Require the Declarant to be Unavailable

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Excited Utterance: An excited utterance is a statement made in response to a startling or exciting event, which relates to the event and is made contemporaneously with the event. An excited utterance is an exception to the hearsay rule. The rationale is that such statements have their own indicia of trustworthiness.

Present Sense Impression (tested 90% w/ Excited Utterance): a present sense impression is a statement made while describing an event as it takes place or shortly thereafter.

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Hearsay Exceptions Which do not Require the Declarant to be Unavailable

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State of Mind Exception: a declarant's statement regarding his present state of mind is an exception to the hearsay rule.

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Exceptions Which Require the Declarant to be Unavailable - DDF

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Declarations Against Interest: a declarant's statement against his penal or pecuniary interest is an exception to the hearsay rule when the declarant is unavailable. The statement has to be against the declarant's interest when it is made and it has to be based on personal knowledge of the declarant.

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Exceptions Which Require the Declarant to be Unavailable

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Dying Declarations: a dying declaration is a statement made under fear of impending death. Such a statement is admissible in a civil case or in a homicide prosecution so long as the declarant is unavailable. The declarant, however, need not have died. NV: Statement need not relate to cause or circumstances of death.

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Other Exceptions to Hearsay Rule

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NV Catch-all: A statement is not excluded by the hearsay rule if its nature and the special circumstances under which it was made offer assurances of accuracy not likely to be enhanced by calling the declarant as a witness, even though he is available. A statement made by a child under 10 describing act of sexual conduct is admissible in criminal proceeding if circumstantial guarantees of trustworthiness and child testifies or is unable to testify.

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Other Exceptions to Hearsay Rule

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Family Records: statements of fact concerning personal or family history contained in family Bibles, jewelry engravings, genealogies, tombstone engravings, etc., are admissible.
Market Reports: and other published compilations are admissible if generally used and relied upon by the public or by persons in a particular occupation.

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Other Exceptions to Hearsay Rule

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Records of vital statistics: are admissible if the report was made to a public officer pursuant to requirements of law.
Statement of Absence of Public Record: evidence in the form of a certification or testimony from the custodian of public records that she has diligently searched and failed to find a record is admissible to prove that the matter was not recorded, or inferentially that the matter did not occur.
Judgments: a certified copy of a judgment is always admissible proof that such judgment has been entered.
Former testimony: former testimony is admissible in NV, when the declarant is unavailable, the proceeding was different, the party against whom it is offered was a party or is in privity w/ one of the former parties, and the issues are substantially the same. Cross-exam opportunity not required in NV.
Statements of Personal or Family History: statements by a now unavailable declarant concerning births, marriages, divorces, relationship, etc., are admissible provided that the declarant is

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Privileges - characterize type, apply to parties, exceptions

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Attorney/Client: a communication between attorney and client and their representatives intended by client to be confidential and made to facilitate legal services is privileged in all civil and criminal proceedings unless waived by the client. The privilege applies to communications from employee/agents if the corporation authorized the employee/agent to communicate to the lawyer. Everyone in the room with the a/c is within the scope of the privilege (e.g., paralegal). Preliminary interviews done to facilitate future legal services are within the privilege. Privilege survives if P fires lawyer or P dies.
Exceptions: professional services sought to further what client knew or should have known to be a crime or fraud; communication relates to alleged breach of duty between lawyer and client; or two or more parties consult an attorney on a matter of common interest and the communication is offered by one of these parties against another.

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Privileges

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Doctor/Patient - no d/p privilege under FRE but most states, including NV have adopted the privilege. 1) a patient has a privilege to prevent disclosure of information confidentially conveyed to a physician where the patient conveyed the info for the purpose of obtaining diagnosis or treatment and the info was pertinent to diagnosis or treatment; 2) info must be intended by patient to be confidential; 3) info conveyed to doctor must be pertinent to diagnosis or treatment. Exceptions: majority law --> privilege does not apply where 1) the patient puts his physical condition in issue, as in a personal injury suit; 2) where physician's services sought to aid crime or fraud or to escape capture after a crime or tort; 3) in case alleging breach of duty arising out of d/p relationship, as in a malpractice action. NV: the privilege applies in criminal cases; in personal injury cases there is an exception for written doctor or hospital records, but privilege can still apply to verbal communications.

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Privileges

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Clergy/Penitent;
Spousal Testimonial Privilege: permits W to refuse to testify against his/her spouse as to anything. FRE: applies only in criminal cases. NV: applies in civil and criminal cases. Applies only if W and party are married at time of trial. NV: applies only to matters occurring during the marriage. W owns the privilege. Spouse cannot stop her from testifying.

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Privileges

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Marital Communication: married at time of statement; both spouses hold privilege - applies in both criminal and civil cases. For both privileges, there must be a legally valid marriage. Neither privilege applies in civil action between spouses or in criminal prosecution where one spouse is charged w/ a crime against the other spouse or one of their kids. Applies if communication made during marriage. Both spouses own the privilege. Spouse can stop other spouse from testifying.

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Privileges

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Psychotherapist - patient & social worker: a communication between a psychotherapist and patient, or licensed social worker and client, intended by patient/client to be confidential and made to facilitate rendition of professional psychological services is privileged in all civil and criminal proceedings unless waived by the patient/client. P/C must have intended the communication to be confidential and purpose of communication must have been to facilitate professional services. NV: the psychotherapist privilege does not apply if there is an immediate threat that the patient will harm himself or others.

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Privileges

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Other NV privileges: accountant/client; journalist (news shield)-a journalist has a privilege to refuse to divulge published or unpublished info and the sources of such info. Teacher/pupil; confessor-confessant; client-marriage and family therapist.

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Judicial Notice

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Courts can take judicial notice of facts not subject to reasonable dispute b/c they are either: 1) generally known within the jurisdiction; or 2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Party must request judicial notice to compel judicial notice; if not requested, court has discretion to take judicial notice. If requested in civil case, court instructs jury it MUST accept noticed fact as conclusive. In criminal case, court instructs jury it MAY, but is NOT required to accept judicially noticed fact. May occur at any time, even on appeal.

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Common Rebuttable Presumptions

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Legitimacy: every person is presumed to be legitimate;
Against suicide: when cause of death is in dispute, there is a presumption in civil cases that it was not suicide;
Sanity: every person is presumed sane in civil and criminal cases until the contrary is shown;
Death from absence: if a person is unexplainably absent for a continuous period of 7 years and he has not been heard from, he is presumed dead;
Ownership of car: agent driver - proof of ownership of a motor vehicle creates the presumption that the owner was the driver or that the driver was the owner's agent.

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Common Rebuttable Presumptions

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Chastity: every person is presumed chaste and virtuous;
Regularity: it is presumed that persons acting in an official office are properly performing their duties;
Continuance: proof of the existence of a person or condition at a given time raises a presumption that it continues for as long as it is usual w/ things of that nature;
Mail delivery: a letter, properly addressed, stamped, and mailed is presumed to have been delivered;
solvency: a person is presumed solvent, and every debt is presumed collectable.
bailee's negligence: proof of delivery of goods in good condition to a bailee and failure of the bailee to return the goods in the same condition creates the presumption that the bailee was negligent;
marriage: upon proof of a marriage ceremony, a marriage is presumed valid.

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Parties, Judges, and Jury

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Q of law are for the trial judge to determine and Qs of fact are for the jury.

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Form Problems

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Leading Qs: ones, which suggest an answer. Not allowed on direct exam, except as to preliminary matters. Also permitted if a W is frail or unable to answer a non-leading Q due to physical infirmity. Are permitted on cross-exam or when examining a hostile witness.
Compound Qs: ask more than one Q at a time - not permitted.
Argumentative Qs: a Q is argumentative when it simply contests the testimony of the W and doesn't seek information from the W. Not permitted.
Assuming Facts not in Q: a Q is not allowed to assume facts, which have not been presented as evidence.
Non-Responsive Answer: a W should respond to the Q asked. If a W supplies info, which was not elicited by a Q, the additional info can be stricken as non-responsive.