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Relevant Evidence CORRECT ANSWERS✅ evidence is RELEVANT if it has ANY TENDENCY to make a material fact more probable or less probable than would be the case w/o the evidence. Relevant Evidence Rule CORRECT ANSWERS✅ -all relevant evidence is ADMISSIBLE, UNLESS: (a) some specific EXCLUSIONARY RULE is applicable, OR (b) the court makes a discretionary determination that the PROBATIVE VALUE of the evidence is substantially outweighed by one or more of the following 6 PRAGMATIC CONSIDERATIONS 6 PRAGMATIC CONSIDERATIONS for Relevance CORRECT ANSWERS✅ 1) danger of unfair prejudice
- danger of confusion of issues
- danger of misleading the jury
- undue delay
- waste of time
- unduly cumulative Similar Occurrences - General Rule CORRECT ANSWERS✅ -if evidence concerns SOME TIME, EVENT, OR PERSON OTHER THAN THAT INVOLVED IN THE CASE AT HAND, the evidence is ADMISSIBLE. -probative value is usually outweighed by pragmatic considerations 6 recurring situations that have produced concrete rules that may permit admissibility CORRECT ANSWERS✅ 1) Plaintiff's Accident History
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- Similar Accidents Caused by Same Event or Condition
- Intent in Issue
- Comparable Sales on Issue of Value
- Habit
- Industrial Custom as Standard of Care Plaintiff's Accident History CORRECT ANSWERS✅ -RULE: plaintiff's accident history is INADMISSIBLE b/c it shows nothing more than the fact that the plaintiff is accident-prone → this is just general character evidence -EXCEPTION → plaintiff's prior accidents are admissible IF: the cause of the plaintiff's injuries is an issue -EXAM TIP: always ask yourself - For what purpose is the evidence being offered? Similar Accidents Caused by Same Event or Condition CORRECT ANSWERS✅ -RULE: other accidents involving defendant are inadmissible b/c they suggest nothing more than general character for carelessness -EXCEPTION → other accidents involving the same instrumentality or condition may be admitted for three potential purposes IF the other accident occurred under substantially similar circumstances:
- to show the existence of a dangerous condition;
- to show causation of the accident; OR
- to show prior notice to defendant -NOTE: substantial similarity is also the rule governing the admissibility of EXPERIMENTS and TESTS
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Industrial Custom as Standard of Care CORRECT ANSWERS✅ RULE: evidence as to how others in the same trade or industry have acted in the recent past may be admitted as evidence of how a party in the instant litigation should have acted (as evidence of the APPROPRIATE STANDARD OF CARE) Relevance - Policy Based Exclusions CORRECT ANSWERS✅ 1) liability insurance
- Subsequent Remedial Measures Liability Insurance - Rule CORRECT ANSWERS✅ RULE: evidence that a person has (or does not have) liability insurance is INADMISSIBLE for the purpose of proving FAULT or ABSENCE OF FAULT Liability Insurance - Exception to the Rule CORRECT ANSWERS✅ -evidence of insurance may be admissible for some other relevant purpose, such as: (a) proof of OWNERSHIP/CONTROL OF INSTRUMENTALITY OR LOCATION, IF any of these issues is disputed by the defendant; OR (b) for the purpose of impeachment of a witness (the process of trying to show that a witness should not be believed) Subsequent Remedial Measures - Rule CORRECT ANSWERS✅ -post-accident repairs, design changes and policy changes are INADMISSIBLE for the purpose of proving NEGLIGENCE, CULPABLE CONDUCT, PRODUCT DEFECT, or NEED FOR WARNING -NOTE: in a products liability action based on strict liability, the manufacturer's subsequent remedial measures are inadmissible to show the existence of a defect in the product at the time of the accident
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Subsequent Remedial Measures - Policy CORRECT ANSWERS✅ to encourage post- accident repairs, etc., to avoid future accidents Subsequent Remedial Measures - Exception CORRECT ANSWERS✅ Subsequent remedial measures may be ADMISSIBLE for some other relevant purpose, such as PROOF OF OWNERSHIP/CONTROL or FEASIBILITY OF SAFER CONDITION, IF either is disputed by the defendant Settlements of Disputed Civil Claims - Rule CORRECT ANSWERS✅ -RULE → in the event of a disputed civil claim, the following are INADMISSIBLE for the purpose of showing liability:
- settlement
- an offer to settle
- statements of fact made during settlement discussions -NOTE: the exclusionary rule only applies IF there is a CLAIM that is DISPUTED (at the time of the settlement discussion) either as to VALIDITY OF THE CLAIM or AMOUNT OF DAMAGES Settlements of Disputed Civil Claims - Exceptions CORRECT ANSWERS✅ 1) settlement of evidence admissible for the purpose of impeaching a witness on the ground of bias
- statements of fact made during settlement discussion in civil litigation with a government regulatory agency are admissible in a later criminal case Plea Bargaining in Criminal Cases → the following are INADMISSIBLE: CORRECT ANSWERS✅ -offer to plead guilty → cannot be used against the defendant in the pending criminal case or in subsequent litigation based on the same facts
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Evidence of Defendant's Character (Criminal Cases) CORRECT ANSWERS✅ -RULE: evidence of the defendant's character to prove conduct on a particular occasion is INADMISSIBLE DURING THE PROSECUTION'S CASE-IN-CHIEF -HOWEVER, defendant, during the defense, may introduce evidence of a relevant character trait (by reputation or opinion testimony of a character witness) to prove conduct, which OPENS THE DOOR TO REBUTTAL by the prosecution -NOTE: evidence that the defendant is law-abiding is permissible The PROPER FORM for character evidence through a character witness to prove propensity: CORRECT ANSWERS✅ 1) reputation evidence AND/OR
- opinion evidence Prosecution's Rebuttal (character evidence in Criminal Cases) CORRECT ANSWERS✅ RULE → IF defendant has "opened the door" by calling character witnesses, the prosecution may rebut:
- by cross-examining defendant's character witnesses for the limited purpose of impeaching that character witness' knowledge about the defendant; AND/OR
- by calling its own reputation or opinion witnesses to contradict defendant's witnesses Victim's Character - Self-Defense Case CORRECT ANSWERS✅ -RULE: criminal defendant may introduce evidence of victim's violent character to prove victim's conduct in conformity, i.e., as circumstantial evidence that the VICTIM was the FIRST AGGRESSOR -Proper Method: character witness may testify to victim's reputation for violence and may give opinion
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Victim's Character - Self-Defense Case - Prosecution's Rebuttal CORRECT ANSWERS✅ evidence of victim's good character for peacefulness (with reputation or opinion); in addition, prosecution may prove DEFENDANT'S CHARACTER FOR VIOLENCE Victim's Character - Self-Defense Case - Homicide CORRECT ANSWERS✅ if defendant offers evidence of any kind that victim was the first aggressor, prosecution may introduce evidence of victim's good character for peacefulness Victim's Character - Self-Defense Case - Separate Rule of Relevance CORRECT ANSWERS✅ if the defendant, at the time of the alleged self-defense, was aware of the victim's violent reputation or prior specific acts of violence, such awareness MAY BE PROVEN to show the DEFENDANT'S STATE OF MIND (FEAR), to help prove that he acted reasonably in responding as he did to the victim's aggression Victim's Character - Sexual Misconduct Case CORRECT ANSWERS✅ Rape Shield Law: in both criminal and civil cases, where defendant is alleged to have engaged in sexual misconduct, the following evidence about the victim is ordinarily INADMISSIBLE:
- opinion or reputation evidence about the victim's sexual propensity, OR
- evidence of specific sexual behavior of the victim Victim's Character - Sexual Misconduct Case - EXCEPTIONS CORRECT ANSWERS✅
- specific sexual behavior of the victim to prove that SOMEONE OTHER THAN THE DEFENDANT WAS THE SOURCE of semen or injury to the victim;
- victim's sexual activity with the defendant IF the defense of consent is asserted; OR
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- Identity
- Common scheme or plan (modus operandi) -NOTE: if a MIMIC category is satisfied, the prosecution may use other-crimes evidence as part of its case-in-chief → MIMIC evidence is NOT dependent on defendant's introduction of favorable character evidence -NOTE: MIMIC evidence MUST show something SPECIFIC Method of proof for MIMIC-purpose crimes: CORRECT ANSWERS✅ -by conviction, OR -by evidence (witnesses, etc.) that proves the crime occurred: conditional relevancy standard -NOTE: upon defendant's request, prosecution must give pretrial notice of intent to introduce MIMIC evidence (in all cases, court must also weigh probative value vs. prejudice and give limiting instructions if MIMIC evidence is admitted) conditional relevancy standard CORRECT ANSWERS✅ the prosecution need only produce sufficient evidence from which a reasonable juror could conclude that defendant committed the other crime MIMIC IN CIVIL CASES CORRECT ANSWERS✅ if relevant to a non-character purpose, MIMIC evidence can also be used in civil cases, such as tort actions for fraud or assault Other Sexual Misconduct to Show Propensity in Sex-Crime Prosecution or Civil Action CORRECT ANSWERS✅ -RULE: in a case alleging sexual assault or child molestation, PRIOR SPECIFIC SEXUAL MISCONDUCT of the defendant is ADMISSIBLE as part of the case-in-chief of the prosecution (in a criminal case) or
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of the plaintiff (in a civil action) for any relevant purpose, including DEFENDANT'S PROPENSITY FOR SEX CRIMES, as circumstantial evidence of conduct on the occasion in question -NOTE: SPECIFIC ACTS ONLY → NOT reputation or opinion evidence Authentication Process CORRECT ANSWERS✅ -if the relevance of a writing depends upon its source or authorship, a showing must be made that the writing is authentic (genuine), i.e., that it is what it purports to be -in the absence of a stipulation as to authenticity, a FOUNDATION must be made in order for a document to be admissible 3 potential issues (aside from relevance) whenever a writing appears CORRECT ANSWERS✅ authentication, best evidence rule, and hearsay Methods of Authentication, Generally CORRECT ANSWERS✅ -ISSUE: whether X is the author of the DOCUMENT
- Witness' personal knowledge
- Proof of Handwriting
- Ancient Document Rule
- Solicited Reply Doctrine -NOTE: when there is a question of fact as to authenticity, apply the conditional relevancy standard -the document IS ADMISSIBLE if the court determines there is sufficient evidence from which a reasonable juror could conclude the document is genuine → the judge doesn't have to be persuaded that the document is genuine; only that a reasonable juror could find that it's genuine
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Types of Self-Authenticating Documents CORRECT ANSWERS✅ 1) official publications
- certified copies of public or private records on file in public office
- newspapers of periodicals
- trade inscriptions and labels
- acknowledged document (notarized)
- commercial paper Authentication of Photographs CORRECT ANSWERS✅ RULE: witness may testify on the basis of personal knowledge that the photograph is a "fair and accurate representation" of the people or objects portrayed Best Evidence Rule CORRECT ANSWERS✅ -a party who seeks to prove the contents of a WRITING must either produce the original writing, or provide an acceptable excuse for its absence -if the court finds the excuse is acceptable, the party may then use secondary evidence, oral testimony or a copy -the definition of WRITING includes sound recordings, X-rays, and films When the Best Evidence Rule applies: CORRECT ANSWERS✅ when a party is seeking to prove the contents of a writing 2 Principal Situations in which the BEST EVIDENCE RULE applies CORRECT ANSWERS✅ 1) the writing is a LEGALLY OPERATIVE DOCUMENT, i.e., the writing
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itself creates rights and obligations (Examples: patent, deed, mortgage, divorce decree, written contract)
- witness is testifying to FACTS that she learned solely from reading about them in a writing When the Best Evidence Rule DOES NOT apply CORRECT ANSWERS✅ when a witness with personal knowledge testifies to a FACT that EXISTS INDEPENDENTLY of a writing that records the fact What qualifies as the "original writing"? CORRECT ANSWERS✅ 1) whatever the parties INTENDED AS THE ORIGINAL; any counterpart intended to have the same effect; any negative of film or print from the negative; computer print-out
- duplicate
- handwritten copy is neither an original nor duplicate duplicate CORRECT ANSWERS✅ any counterpart produced by any mechanical means that accurately reproduced the original (e.g., photocopy, carbon copy) rule on duplicates CORRECT ANSWERS✅ duplicate is admissible to same extent as original UNLESS it would be unfair (e.g., photocopy of fuzzy fax), or genuine question is raised as to authenticity of original Excuses for non-production of original CORRECT ANSWERS✅ 1) LOST or CANNOT BE FOUND with due diligence
- DESTROYED without bad faith
- CANNOT BE OBTAINED with legal process
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Leading Questions CORRECT ANSWERS✅ form of question suggests the answer Rules for Leading Questions CORRECT ANSWERS✅ (a) GENERALLY NOT ALLOWED on DIRECT EXAMINATION of witness (b) generally ALLOWED on CROSS-EXAMINATION of witness (c) BUT allowed on DIRECT EXAM as follows: ---1) preliminary introductory matters ---2) youthful or forgetful witness ---3) hostile witness ---4) direct examination of adverse party or someone under control Writings in Aid of Oral Testimony CORRECT ANSWERS✅ 1) Refreshing Recollection
- Past Recollection Recorded (Hearsay Exception) Refreshing Recollection CORRECT ANSWERS✅ -RULE: witness may NOT read from prepared memorandum; must testify on basis of current recollection -BUT, if witness's memory fails him, he may be shown a memorandum (or any other tangible item) to jog his memory -Safeguard against abuse → ADVERSARY has right:
- to inspect the memory-refresher
- to use it on cross-examination
- to introduce it into evidence
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Past Recollection Recorded (Hearsay Exception) CORRECT ANSWERS✅ Foundation for reading the contents of the writing into evidence:
- showing writing to witness fails to jog memory
- witness had personal knowledge at former time
- writing was either made by witness, or adopted by witness
- making or adoption occurred while the event was fresh in the witness's memory
- witness can vouch for accuracy of writing when made or adopted Lay OPINION Admissible IF: CORRECT ANSWERS✅ 1) rationally based on witness's perception (personal knowledge), AND
- opinion must be HELPFUL to jury in deciding a fact -Examples: drunk/sober speed of vehicle sane/insane emotions of another person handwriting Expert Witness Qualifications CORRECT ANSWERS✅ education AND/OR experience Proper Subject Matter - Expert Witness CORRECT ANSWERS✅ scientific, technical or other specialized knowledge that will be helpful to jury in deciding a fact
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relevant portions of treatise, periodical, or pamphlet may be read into evidence as substantive evidence (to prove truth of matter asserted) if established as reliable authority --basically, has to be used w/ the testimony while the witness is on the stand
- on cross-examination of opponent's expert: read into evidence to impeach and contradict opponent's expert → comes in as substantive evidence
- BUT learned treatise may not be introduced as exhibit Opinion Testimony as to Ultimate Issues CORRECT ANSWERS✅ -RULE: opinion testimony (lay or expert) is permissible even if it addresses an "ultimate issue" in the case (e.g., in DWI case, layperson testifies "X seemed drunk") -BUT, all other requirements for opinion testimony must be satisfied, including the requirement that the opinion is HELPFUL TO THE JURY -Criminal Cases → "ultimate issue" is still proper objection IF expert seeks to give direct opinion that defendant did or did not have relevant mental state cross-examination rule CORRECT ANSWERS✅ party has a RIGHT to cross-examine any opposing witness who testifies at the trial → significant impairment of this right will result, at minimum, in striking of witness's testimony cross-examination - proper subject matter CORRECT ANSWERS✅ 1) matters WITHIN THE SCOPE of direct examination; AND
- matters that test the witness's credibility
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Bolstering your own witness CORRECT ANSWERS✅ -RULE: not allowed UNTIL after your witness's credibility has been attacked (rehabilitation) -EXCEPTION: witness's prior identification of a person → comes in as substantive evidence -Example: witness testifies that she recognizes defendant, sitting in court, as the perpetrator --in addition, witness says "I picked defendant out of a lineup two weeks after the robbery." → NOT barred by hearsay rule -NOTE: witness who made prior identification MUST TESTIFY AT TRIAL (need to be able to cross-examine) impeachment methods CORRECT ANSWERS✅ 1) prior inconsistent statements
- bias, interest or motive to misrepresent
- sensory deficiencies
- bad reputation or opinion about witness's character for truthfulness
- criminal convictions
- bad acts (w/o conviction) that reflect adversely on witness's character for truthfulness
- contradiction 2 possible ways to use impeachment methods: CORRECT ANSWERS✅ 1) ask the witness about the impeaching fact with the aim of having the witness admit it ("confronting" the witness); OR
- prove the impeaching fact with extrinsic evidence (documentary evidence or testimony from other witnesses)
