Evidence

Question 1

When is evidence relevant?

Answer 1

If it has any tendency to make a material fact more or less probable than it would be without the evidence

Question 2

What is the general rule regarding relevant evidence?

What is the exception?

Answer 2

All relevant evidence is admissible, unless the court makes a discretionary determination that the probative value of the evidence is substantially outweighed by some countervailing pragmatic ground for exclusion

Three basic types of pragmatic considerations:

1. Unfair prejudice
2. Confusion of the jury
3. Waste of time

Exam Tip: if an answer choice on the MBE is one of these pragmatic considerations, it is likely wrong

Question 3

What is the evidentiary rule regarding liability insurance?

Answer 3

Evidence that a person has (or does not have) liability insurance is inadmissible for the purpose of proving:

• That person’s fault or absence of fault

Exception:

• Such evidence may be admissible for some other purpose, such as:
  
  • Proof of ownership or control if disputed, or
  • Impeachment of a witness on the grounds of bias

Question 4

What is the rule regarding dual purpose evidence (i.e., evidence is admissible for one purpose but inadmissible for another purpose)

Answer 4

The judge should give the jury a limiting instruction (i.e., limited admissibility)

Question 5

What is impeachment?

Answer 5

The process of trying to show that a witness should not be believed

Question 6

What does bias mean?

Is evidence of bias admissible?

Answer 6

Bias means there is some relationship between the witness and a party that could cause the witness to lie

Evidence of bias is almost always admissible

Question 7

What is the evidentiary rule regarding subsequent remedial measures?

Answer 7

Remedial measures are inadmissible for the purpose of proving:

• The defendant’s fault
  
  • ​E.g., negligence, culpable conduct, defect in product design, or the need for a warning or instruction

Exception:

• Such evidence may be admissible for some other purpose, such as proof of the following, if disputed:
  
  • Ownership
  • Control
  • Feasibility of remedial measures

Question 8

Is evidence of subsequent remedial measures admissible in a strict liability case?

Answer 8

Not to prove a defect. It is irrelevant whether the case is negligence or strict liability

Question 9

What is the evidentiary rule regarding settlements and attempted settlements of civil cases?

Answer 9

If there is a disputed civil claim, then evidence of:

• Settlement (i.e., successful)
• Offer of settlement (i.e., unsuccessful)
• Statement of fact made during negotiations

Is inadmissible for the purpose of proving:

• Liability
• The amount of the claim

Unless:

1. The civil claim is brought by the government and:
   
   • Statements of fact by the defendant during settlement negotiations
   • Are introduced at a later criminal trial
2. _​_Introduced for some other purpose, such as:
   
   • To impeach on the ground of bias
3. Virginia distinction
   
   • _​_An express admission of liability (or some independent fact) is admissible even if it takes place during settlement negotiations
     
     • But not:
       
       • Plaintiff’s financial demand during negotiations, or
       • Defendant’s offer during negotiations

Question 10

What are the Virginia distinctions?

Answer 10

1. ​An express admission of liability (or some independent fact) is admissible even if it takes place during settlement negotiations
   
   • But not:
     
     • Plaintiff’s financial demand during negotiations
     • Defendant’s offer during negotiations
2. Nolo contendere pleas in criminal proceedings can be used as an admission against a party in civil litigation
3. When character evidence is admissible to prove propensity in a criminal case, it may only be admitted in the form of reputation, and not opinion or specific acts
4. In Virginia, there is no rule allowing the defendant to introduce evidence of an alleged victim’s violent character to prove that the she was the first aggressor
5. In Virginia, there is no rule allowing the plaintiff or prosecution to introduce evidence of prior acts of sexual assault or child molestation to prove a propensity to committ those acts
6. Virginia law, unlike Federal law, recognizes a physician-patient privilege, but only in civil trials

Question 11

Immediately after a car accident, one driver runs up to the other and offers to settle for $100,000 if they don’t sue. is this admissible?

Answer 11

Yes. In this case no claim had been asserted much less filed at the time of the offer, so the evidentiary ban does not apply.

The evidentiary ban only applys to offers or negotiations after a claim was filed.

Question 12

What is the evidentiary rule regarding offers to pay hospital or medical expenses?

Answer 12

Evidence that a party has paid or offered to pay an accident victim’s medical expenses is inadmissible for purposes of proving:

• Liability

Exception:

• Any other statements aside from the payment or offer to pay are admissible
  
  • E.g., “I’m sorry,” or “I ran the red light”

Question 13

Why are the following examples usually not hearsay:

• Settlements and attempted settlements
  
  • Payments or offers to pay medical expenses

Answer 13

They are almost always being offered against the opposing party

Question 14

What is the evidentiary rule regarding pleas and plea discussions in criminal cases?

Answer 14

The following statements by the defendant or defense counsel in a criminal prosecution are inadmissible for any purpose against that defendant, either in the criminal case or in a subsequent civil case:

1. Unsuccessful offers to plead guilty
2. Withdrawn guilty pleas
3. No contest (nolo contendere) pleas
4. Statements of fact that lead to any of the above

Virginia distinction

• Nolo contendere pleas in criminal proceedings can be used as an admission against a party in civil litigation

Question 15

Is a plea of guilty that is not withdrawn admissible against that defendant in litigation based on the same facts?

Answer 15

Yes. It is not hearsay because it is a party admission.

But if it is offered against someone else at a later trial, such as an alleged conspirator, it is usually inadmissible hearsay

Question 16

What is character evidence?

Answer 16

It relates to a person’s general propensity or disposition

• E.g., character traits of honesty, peacefulness, carefulness, etc.

Question 17

What are the four possible purposes for introducing character evidence?

Which are admissible?

Answer 17

1. Conforming conduct
   
   • Usually inadmissible
   • E.g., the person has a particular character trait and acted in conformity with that trait
2. Impeachment
   
   • Usually admissible
   • E.g., evidence of person’s character for untruthfulness (or truthfulness) is offered to impeach (or rehabilitate)
3. Other purpose
   
   • Usually admissible
   • E.g., evidence of a person’s character is used for some purpose other than proving propensity
4. Essential element
   
   • Usually admissible
   • E.g., evidence of a person’s character trait is offered because the trait itself is an essential element of a claim or defense - e.g., defamation, negligent entrustment

Question 18

What is the general rule regarding evidence of the defendant’s character in a criminal trial?

Answer 18

Evidence of the defendant’s character is generally not admissible to prove propensity (i.e., conduct in conformity)

Exceptions:

• D opens the door
  
  • D may introduce evidence of his own pertinent trait of good character
• P rebuts
  
  • If D does so, the prosecution may rebut with evidence of D’s bad character

Question 19

When character evidence is admissible to prove propensity, in what form may it be admitted?

Answer 19

Only:

• Opinion
• Reputation

Not:

• Specific acts

Virginia distinction:

• Only:
  
  • Reputation
• Not:
  
  • Opinion
  • Specific acts

Question 20

Can a defendant in a murder trial call a character witness to talk about the defendant’s reputation for bravery and honesty?

Answer 20

Only if someone had testified about his lack of these character traits.

This is not pertinent to a murder charge.

Question 21

If the defendant opens the door for the prosecution by calling character witnesses, how can the prosecution rebut this?

Answer 21

1. Calling its own witnesses
   
   • But only:
     
     • Reputation
     • Opinion (but not in Virginia)
2. Cross-examining the defendant’s character witnesses
   
   • By questioning their knowledge of specific acts that are relevant to the character trait at issue
   • Good faith requirement
     
     • Prosecution must have a good faith belief (i.e., some solid, but not necessarily admissible, ground) that the specific act took place

Question 22

If the prosecution rebuts a character witness by questioning him based on specific acts, and the witness doesn’t know what he’s talking about, what happens?

Answer 22

The prosecution has to move on.

These bad acts cannot be proven by extrinsic evidence

Question 23

In a murder trial, if the only testimony is from the defendant who denies guilt, can the prosecution rebut with any character evidence?

Answer 23

Only reputation or opinion (if not in Virginia) evidence of the defendant’s dishonesty

All other character traits were not at issue

Question 24

What is the federal rule regarding a victim’s character in a criminal self-defense case?

What about the Virginia rule?

Answer 24

Federal rule for criminal or civil cases

• Defendant offers
  
  • A criminal defendant may offer evidence of the victim’s violent character to prove that the victim was the first aggressor
• Prosecution rebuts
  
  • Two options:
    
    • Evidence of the victim’s peaceful character
    • Evidence of the defendant’s violent character

Required form:

• Opinion
• Reputation

Virginia rule

• There is no such rule

Question 25

What is the special rule regarding a defendant's knowledge of the victim's character for violence?

Answer 25

The defendant may offer evidence of _his own knowledge_ of the victim's bad character for violence at the time of the alleged offense, but _only for purposes of showing_: * That he _reasonably feared_ he was in danger _Note 1_: This also would not be hearsay because it is not offered for the truth of the matter asserted _Note 2_: Because this is not propensity evidence, _any form_ is admissible

Question 26

What is the rape shield rule?

Answer 26

In a _criminal or civil_ case involving alleged _sexual misconduct_ (e.g., any sexual conduct, not just rape), the defendant ordinarily may not introduce evidence of: * The victim's _sexual history_ * The victim's _sexual predisposition_ Unless: * _Same guy_ * _​_Evidence of the victim's sexual activity with the _defendant_, * But only if the defense is _consent_ * _Same evening_ * _​_Evidence of the victim's sexual activity with _others_, * But only to prove that someone other than the defendant was the _source of physical evidence_ * _​_Required by _Confrontation Clause_ * _​_Evidence typically to prove that the alleged victim had some _motive_ to lie about her accusations * E.g., _Olden_ case - alleged victim cried that she had just been raped not because she had been raped becuase she wanted to cover herself up in front of her lover

Question 27

What is the general rule regarding evidence of the someone's character in a _civil trial_?

Answer 27

Character evidence is generally _inadmissible_ to prove conforming conduct in _civil cases_ Exceptions: * The character trait is an _essential element_ of a claim or defense * E.g., negligent entrustment, defamation

Question 28

What is the general rule regarding _habit_ evidence?

Answer 28

Propensity evidence is generally inadmissible for purpose of proving conduct on a particular occasion Exception for _habit_: * Habit of a person (or routine practice of a business) is _admissible_ to infer how the person (or business) acted on the occasion at issue in the litigation

Question 29

What is habit? What words will likely suggest habit?

Answer 29

Habit is a _repetitive_ response to a _particular set_ of circumstances and has two distinguishing characteristics: * Frequency of the conduct * Regularity of the response Look for the following words: * Always * Invariably * Automatically * Instinctively But no the word "_often_" because it does not suggest habit

Question 30

What is the general rule regarding evidence of a defendant's other crimes for non-character purpose?

Answer 30

A defendant's _other crimes_ or _specific bad acts_ are _inadmissible_ during the _prosecution's case-in-chief_ if the _only purpose_ is to prove _propensity_ (i.e., because of defendant's bad character he is more likely to have committed the crime currently charged) Exception: * Defendant's _other crimes_ or _specific bad acts_ are _admissible_ if offered to show: * Something _specific about the crime_ and _how he committed it_, such as: * Motive * Intent * Mistake or accident, absence thereof * Identity * Common scheme or plan ("MIMIC")

Question 31

What methods can be used to prove MIMIC-purpose crimes?

Answer 31

* Proof of _conviction_, or * Any other _admissible_ evidence

Question 32

What is the burden of proof with regard to MIMIC-purpose evidence (i.e., the burden just to get the evidence admitted)?

Answer 32

The prosecution must produce sufficient evidence for a reasonable jury to conclude that D committed the prior act by a _preponderance of the evidence_

Question 33

What are the requirements for evidence of MIMIC-purpose crimes?

Answer 33

* _Burden of proof_ * The prosecution must produce sufficient evidence for a reasonable jury to conclude that D committed the prior act by a _preponderance of the evidence_ * _FRE 403 balancing_ * _​_The court must weigh the evidence's probative value against the risk of unfair prejudice * _Limiting instruction_ * _​_The court must instruct the jury about the limited purpose of the evidence * _Pre-trial notice_ * _​_Upon the defendant's request, the prosecution must give the defendant pre-trial notice of their intent to introduce evidence of MIMIC-purpose crimes

Question 34

Can evidence of MIMIC-purpose crimes be used in civil cases?

Answer 34

Yes, although it most often comes up in criminal cases

Question 35

What is the _federal_ rule regarding evidence of other sexual conduct to show a propensity for sexual assaults? What is the _Virginia_ rule?

Answer 35

_Federal_ rule (i.e., once a rapist, always a rapist) * In _any case_ (civil or criminal) involving: * _Sexual assault_, or * _Child molestation_, * The plaintiff or prosecution can introduce evidence of _similar acts_ for the purpose of proving the defendant's _propensity_ to commit those acts _Virginia_ rule * There is no such Virginia rule

Question 36

Can evidence of a plaintiff's history of accidents or lawsuits be introduced?

Answer 36

Such evidence is _inadmissible_ to prove that the plaintiff is: * _Accident-prone_ * _Litigious_ Such evidence is _admissible_ to prove: * _MIMIC_-purpose * _Another explanation_ for the plaintiff's _injuries_

Question 37

Can evidence of similar acts caused by the same event or condition be introduced?

Answer 37

Only if: * The similar acts were: * Caused by the _same instrumentality or condition_ * Under _substantially similar circumstances_ * And introduced for _purposes_ of proving: 1. A _dangerous condition_ 2. _Causation_ 3. _Prior notice to the defendant_

Question 38

Is evidence of comparable sales admissible?

Answer 38

Yes, if it is evidence of: * The _value_ of _similar real property_ * Introduced for _purposes_ of proving the _value_ of the property at issue

Question 39

Is evidence of industrial custom admissible?

Answer 39

Yes. This is introduced to show that others did X, so D should have done X. It is not a violation of FRE 404 because it does not show that D did X, so he had a propensity to do X again.

Question 40

In what forms is evidence usually admitted?

Answer 40

1. Testimony by witnesses 2. Exhibits (real and illustrative evidence) 3. Judicial notice

Question 41

What is judicial notice? When may a court take judicial notice?

Answer 41

The recognition of a fact as true without formal presentation of evidence A court may take judicial notice of: * _Indisputable facts_, which come in two forms: 1. Matters of _common knowledge_ within the court's territorial jurisdiction * E.g., a court in NY can take judicial notice that Times Square is at the intersection of 7th Ave. and Broadway 2. Matters of _ready determination_ by resort to _reliable_ sources * E.g., any court can resort to a calendar and take judicial notice that November 22, 1964 was a Sunday

Question 42

When can judicial notice be taken? What is the effect of judicial notice?

Answer 42

Timing * Judicial notice may be taken _at any time_ including on appeal Effect * _Civil_ cases * Judicially noticed facts are _conclusive_ * _​_The jury _must_ consider the fact as if proved * _Criminal_ cases * Judicially noticed facts are _permissive_ * The jury _may_ consider the fact as if proved

Question 43

Whenever a writing appears on the exam, what issues should you look for?

Answer 43

1. Authentication 2. Best evidence 3. Hearsay

Question 44

What is the general rule regarding authentication?

Answer 44

The party seeking to introduce an exhibit must: * Introduce _sufficient evidence_ * For a _reasonable juror_ to conclude * That the _item is what the party claims it to be_

Question 45

What is the process of authentication called?

Answer 45

_Laying the foundation_ for the admission of evidence

Question 46

What is the authentication rule for writings?

Answer 46

If the _relevance_ of the writing depends upon its _source_ or _authorship_, the party offering the document must _prove_ the _source_ or _authorship_ to authenticate the writing

Question 47

What are the methods for authenticating writings?

Answer 47

1. Testimony by a witness with _knowledge_ 2. Proof of the author's _handwriting_ by: * _Lay opinion_ - i.e., the witness must have familiarity with the handwriting other than from preparing for the litigation * _Expert witness_ - i.e., the expert must be qualified and must compare the _document_ to a genuine sample or exemplar of the handwriting * _Comparions by jury_ - i.e., the jury compares the _document_ to a geunine sample or exemplar of the handwriting 3. _Ancient document rule_ * Authenticity must be _inferred_ if the _document_ is: 1. At least _20 years old_ 2. Facially free of _suspicion_ 3. Found in its _natural location_ 4. _Solicited reply doctrine_ * A document can be authenticated by evidence that it was _received in response_ to a prior communication to the alleged author

Question 48

What documents are self-authenticating?

Answer 48

1. Official _publications_ * E.g., government regulations 2. Certified copies of public or private documents _on file_ in a public office * E.g., deeds 3. _Newspapers_ or periodicals * E.g., WSJ 4. Trade _inscriptions_ and labels * E.g., Nike logo 5. _Acknowledged_ documents * E.g., notarized documents 6. _Commercial paper_ * E.g., promissory note 7. _Certified business records_ offered into evidence under the business records _hearsay exception_ * Must be certified: * By the _custodian_ * Who knows how it was _prepared_ * And that these documents were made in the _regular course of business_ * At or about the _time of the events_ described therein

Question 49

How can photographs and recordings be authenticated?

Answer 49

Demonstrative evidence * If the purpose of the photo or recording is to illustrate a witness's testimony, it can be authenticated by the witness testyfing, based on personal knowledge, that the it is an _accurate depiction_ of the people or objects portrayed * _Note_: this witness does not have to be the one who took the photo Photo as a "silent witness" * A party offering a photograph as substantive evidence must show: * The camera was working * The film was properly loaded and removed * The film had not been altered * E.g., by establishing a chain of custody

Question 50

What is the best evidence rule?

Answer 50

It is better understood as the "original writings and recordings" rule If a party seeks to prove the _contents of a writing_, the party must either: * _Produce_ the writing, or * Provide an _excuse for its absence_ If the court finds the excuse to be acceptable, the party may use _secondary_ evidence to prove the contents, such as: * Oral testimony * Copies

Question 51

What is a "writing" for purposes of the best evidence rule?

Answer 51

* Documents * Recordings * Films * X-rays

Question 52

When does the best evidence rule apply?

Answer 52

Only when the party seeks to prove the _contents_ of a writing, which arises in two situations: 1. The writing is a _legally operative document_ (i.e., the writing creates legal rights and obligations) * E.g., deeds, mortgages, divorce decrees, written contracts, documents through which a crime was committed 2. The _witness testifies_ to facts learned _solely from reading_ about them in writing * This gives rise to hearsay issues too

Question 53

What qualifies as the "original writing" for purposes of the best evidence rule?

Answer 53

An original _includes_: * The _writing itself_ * Any _counterpart_ intended to have the same effect * E.g., including a _duplicate_ unless: * There is a _genuine question_ about the authenticity of the original, or * It would be _unfair_ to admit the duplicate * Any _negative_ of film * Any _print from the negative_ of film An original _does not include_ secondary methods of proving the contents of the original, such as: * _Handmade_ copies * _Testimony_ *

Question 54

When will production of the original be excused for purposes of the best evidence rule?

Answer 54

If the court is persuaded by a _preponderance of the evidence_ that the original: * Is _lost_ or cannot be found with _due diligence_ * Has been _destroyed_ without bad faith * Cannot be obtained with _legal process_ Or if the following _exceptions_ apply: * _Voluminous records_ can presented through a summary chart, provided that: * The originals would be admissible, and * The originals are available for inspection * _Certified copies_ of public records * _Collateral documents_, provided that: * The court determines the document is unimportant to the issues in the case

Question 55

What should you remember about the best evidence rule for purposes of the bar exam?

Answer 55

* It is almost _never violated_ (and also in real life) * It is almost _never the right answer choice_ on MBE

Question 56

What is real evidence?

Answer 56

Actual physical evidence that is displayed to the trier of fact * E.g., drugs and guns in a criminal case, the offending product in a products liability case

Question 57

What is the authentication rule for real evidence?

Answer 57

The party seeking to introduce evidence must introduce _sufficient_ evidence that the item is _whatever they claim it to be_

Question 58

What are the methods for authenticating real evidence?

Answer 58

* _Eyewitness testimony_ - e.g., witness testifies "I recognize this gun as the one I found at the crime scene" * _Chain of custody_ - e.g., witness testifies "This drug sample has been in my possession ever since it was seized from the defendant"

Question 59

What is the requirement for chain of custody?

Answer 59

It must be _reasonably reliable_. It need not be perfect, but it must be based on reliable procedures for identification and custody

Question 60

What are the authentication requirements regarding the condition of real evidence?

Answer 60

If the condition is _relevant_, it must be shown at trial to be in _substantially the same condition_

Question 61

What is the general rule regarding the competency of witnesses?

Answer 61

In order to testify, witnesses must: 1. Have _personal knowledge_ (e.g., generally no hearsay) 2. Take an _oath or affirmation_, which simply means: * Demonstrate an _understanding_ of the obligation to tell the truth, and * _Swear_ to tell the truth

Question 62

What is the Dead Man's Statute?

Answer 62

* In a _civil action_ * An _interested_ party * May _not_ testify * Against the estate of a _deceased_ party * About communications or transactions with the _dead_ party

Question 63

What jurisdictions have a Dead Man's Statute?

Answer 63

Under the _Federal Rules_, there is not a Dead Man's Statute However, _some states_ have one and federal courts _will follow state law_ on this topic in a _diversity_ case **_Virginia distinction_****:** * Virginia law is a _compromise_ * _​_An interested witness may testify against a decedent's estate but only if the testimony is _corroborated_

Question 64

When is a party "interested" for purposes of a Dead Man's Statute?

Answer 64

A party is interested when: * The _outcome of the case_ will have a _legally binding effect_ on the person's rights or obligations

Question 65

In a state that has a Dead Man's Statute, can an interested party testify that the dead defendant staggered as she approached the witness?

Answer 65

Yes, this is not about a _communication or transaction_ with the dead person

Question 66

When is a question leading? What is the rule regarding leading questions?

Answer 66

When the form of the question suggests the answer * E.g., "isn't it a fact that ..." The rule: * Leading questions are generally _not allowed_ on _direct_ * Leading questions are generally _allowed_ on _cross_ _Exceptions_: 1. _Undisputed_ preliminary matters (i.e., as between P & D) 2. When _necessary_ (e.g., witness is young, scared, etc.) 3. _Hostile_ witnesses as determined by the judge (e.g., uncooperative in any way) 4. _Adverse_ parties (i.e., presumed to be hostile)

Question 67

What is the basic rule for _present_ recollection _refreshed_?

Answer 67

A witness may _not_ read from a _prepared memorandum_; rather, they must testify on the _basis of their current recollection_ Exception: * If a witness forgets something he _once knew_, he may be shown a _writing_ (or anything else) to jog his memory

Question 68

If a party's recollection is refreshed, can he then read the refreshing document into evidence?

Answer 68

Not unless it can be authenticated and fit into a hearsay exception

Question 69

If an item is used to refresh recollection, what can the opposing party do?

Answer 69

The opposing party has a right to: 1. _Inspect_ the document 2. Use it on _cross_ 3. _Introduce_ it into evidence * Not hearsay because not being offered for its truth

Question 70

What is the basic rule for _past_ recollection _recorded_?

Answer 70

A writing may be read to the jury as a "past recollection recorded," despite the ban on hearsay, if: 1. The witness once had _personal knowledge_ 2. The witness now _cannot recall the matter_ and showing the writing to the witness fails to jog their memory 3. The writing was _either_ _made or adopted by the witness_ 4. The writing was made when the event was _fresh in his memory_ (but not too fresh because then it'd be present sense impression) 5. The witness can attest that, the writing was _accurate_

Question 71

What is the method for using past recollection recorded?

Answer 71

1. Make sure that the _foundation_ for a recorded recollection is satisfied 2. The witness may _read the document_ to the jury 3. The witness may _not show the document_ to the jury 4. The opposing party _may show the document_ to the jury (but introducing it as an exhibit)

Question 72

When is lay opinion testimony admissible?

Answer 72

If it is: * _Rationally based_ on the witness's _personal knowledge_, and * _Helpful_ to the jury Examples * Sobriety (or drunkenness) * Emotions - e.g., happy, angry, etc. * Speed - e.g., fast, slow, 100 mph * Handwriting * Smells, tastes, sounds

Question 73

When may a witness testify to an opinion as an expert?

Answer 73

Only if: 1. The witness is _qualified_ (by education and/or experience) 2. The testimony is about a _subject matter_ where _scientific, technical, or specialized knowledge_ will _help_ the jury 3. The opinion has a proper _basis_ 4. The opinion is _reasonably reliable_

Question 74

How do you determine whether an expert opinion has a proper basis?

Answer 74

* The opinion must be based on a _reasonable degree of probability or reasonable certainty_, and * The opinion must be based on one of the following: * The expert's _personal knowledge_ * Evidence that is _admitted or revealed during trial_ * Facts _outside the record_, but only if: * They are the type _reasonably relied upon_ by experts in the particular field

Question 75

If an expert relied on facts outside the record, what can the expert do with those facts? What about the opponent?

Answer 75

Expert * The expert may _generally discuss_ the basis for his opinion, but he may not disclose the i_nadmissible facts_ Opponent * The opponent _may disclose_ the underlying facts on cross

Question 76

What does it mean for expert opinion to be sufficiently reliable?

Answer 76

That means the expert: * Has used _reliable methods_ and * Has _reliably applied_ those methods to the particular facts of the case The court examines reliability by asking (_Daubert_): * T: has the methodology been _tested_? * R: are there known _rates of error_? * A: Has the methodology been _accepted_? * P: Has the methodology been subjected to _peer review_? _Note_: not one question is decisive; this is a flexible balancing test

Question 77

Can opinion testimony (lay or expert) address the ultimate issues in the case (e.g., was X drunk)?

Answer 77

Yes, It is generally permissible even if it addresses ultimate issues. This used to not be the case. However: * The opinion must be _sufficiently specific_ in order to help the jury * In a _criminal case_, an _expert witness_ may not testify as to whether the defendant had the required mental state. * The expert can only testify in general terms as to the defendant's mental condition without linking it to the particular case * E.g., D has schizophrenia and a person with such disease cannot distinguish fact from fantasy

Question 78

Can a party use a treatise in aid of expert testimony?

Answer 78

Yes, if the party establishes that the treatise is _authoritative_: * The treatise may be used on _direct_ or _cross_ of an _expert_, * And the treatise _may_ be _read_ to the jury _as substantive evidence_ despite the hearsay ban * But the treatise _may not_ itself be introduced as an exhibit (i.e., be shown to the jury) The authoritativeness of a treatise can be established by: 1. The _expert testifies_ that it is authoritative 2. The _opponent's expert testifies_ that it is authoritative 3. The _judge takes judicial notice_ that it is authoritative

Question 79

What happens if a witness cannot be cross-examined?

Answer 79

The witness's direct testimony will be stricken from the record. Cross-examination is a right.

Question 80

What is the proper scope of cross-examination?

Answer 80

* Matters _within the scope_ of _direct_ * Matters that affect the witness's _credibility_

Question 81

What is credibility?

Answer 81

Whether a witness is _believable_

Question 82

What is impeachment?

Answer 82

The process of trying to demonstrate that a witness is _unreliable in any way_

Question 83

What is rehabilitation?

Answer 83

The process of trying to _support a witness's credibility_ after the witness _has been impeached_

Question 84

What is intrinsic impeachment?

Answer 84

Impeaching a witness by asking the witness to _admit some facts_ on cross-examination This is always admissible

Question 85

What is extrinsic impeachment?

Answer 85

Impeaching a witness by introducing any evidence _other than his admissions_ on cross-examination E.g., using documentary evidence or calling other witnesses

Question 86

What are the impeachment methods?

Answer 86

1. Prior inconsistent statements 2. Bias, interest, or motive to misrepresent 3. Sensory deficiencies 4. Reputation or opinion 5. Criminal convictions 6. Bad acts (without conviction) 7. Contradiction

Question 87

What is a prior inconsistent statement?

Answer 87

A statement (oral or in writing) that is _materially inconsistent_ with the witness's _trial testimony_ E.g., any form of proof that the witness "changed his story"

Question 88

When can a prior inconsistent statement be used?

Answer 88

Rule * _Only_ to impeach a witness (i.e., not as substatntive evidence that the prior statement is true) Rationale * A witness who says one thing on one occasion and another thing on another occasion _may not be credible_ Exception * The prior inconsistent statement may be used _both to impeach and as substantive evidence_ (e.g., arguing in closing that it was true) if it was made: * Under oath, _and_ * At a trial, hearing or deposition

Question 89

What are the procedural requirements for impeachment with a prior inconsistent statement?

Answer 89

* Witness must be given opportunity to _explain or deny_ the statement * Timing does not have to be while witness is _on the stand_ (e.g., inconsistency may be proven by extrinsic evidence) * But witness must have chance to _return to the stand_ and explain or deny the statement Exception: * If witness is the _opposing party_, there is no need to give them the opportunity to explain or deny the statement * And the inconcistent statement may be introduced as _substantive evidence_ because it falls within the _hearsay exception_ for party opponents

Question 90

What does it mean to impeach a witness because of bias, interest, or motive to misrepresent? What are some examples?

Answer 90

There is some _relationship between the witness and a party_ or some other interest in the litigation that could _cause the witness to lie_ Examples * Witness is: * A party * A friend, relative, or employee of a party * Someone paid by a party * Someone with a grudge against a party * Anyone who has something to gain or lose by the case coming out a certain way

Question 91

How can a witness's bias, interest, or motive to misrepresent be proven? What are the procedural considerations?

Answer 91

Bias, interest, or motive to misrepresent are so important that they can be proven by _both intrinsic and extrinsic evidence_ But the witness should generally be _confronted with the alleged bias before_ it is proven by extrinsic evidence

Question 92

What does it mean to impeach a witness because of sensory deficiencies? What are examples?

Answer 92

There is something that could affect the witness's _perception or memory_ Examples: * Bad eyesight * Bad hearing * Cognitive limitations * Forgetfulness * Intoxication at relevant time * Intoxication while on witness stand

Question 93

How can a witness's sensory deficiencies be proven?

Answer 93

Through _both intrinsic and extrinsic evidence_

Question 94

What does it mean to impeach a witness because of his reputation for or an opinion about his bad character for truthfulness?

Answer 94

The witness is not credible because he does not have a good character for _veracity_

Question 95

How can a party impeach a witness because of their bad character for truthfulness?

Answer 95

By calling _another witness_ (the character witness) to testify about the target witness's bad character for truthfulness in the form of: * Opinion, or * Reputation But not: * Specific acts

Question 96

What does it mean to impeach a witness based on criminal convictions?

Answer 96

The witness is _more likely to lie under oath_ because he has been convicted of a crime

Question 97

What are the requirements/limitations for impeaching a witness based on criminal convictions?

Answer 97

1. _Time limit_ * _​​_The later of the witness's: * Conviction * Release from prison * Must be _within 10 years_ of the trial 2. Crimes of _dishonesty or false statement_ * _​_​These are crimes that involve a _lie_ or _breach of trust_ * _​_E.g., perjury, fraud, embezzlement * They _must be admitted_ if within the time period 3. Other crimes * _Misdemeanors_ - not admissible * _Felonies_ - admissible if: * Their _probative value_ (on the issue of veracity) * Outweighs their _risk of unfair prejudice_

Question 98

When balancing probative value and unfair prejudice, what factors should a judge consider?

Answer 98

Factors that make a conviction _probative_: * Seriousness * E.g., murder \> possession of marijuana * Relation to trust and deception * E.g., theft \> reckless driving Factors that make a conviction _unfairly prejudicial_: * Inflammatory nature * E.g., child molestation \> DWI * Similarity to current charged offense * E.g., identical \> somewhat similar

Question 99

What are the procedural considerations when impeaching a witness based on criminal convictions (i.e., proof and timing)?

Answer 99

Proof * _Both intrinsic and extrinsic_ evidnece are acceptable Timing * _No need_ to give the witness an _opportunity to explain_

Question 100

When can a witness be impeached based on his prior bad acts (i.e., without conviction)?

Answer 100

A witness _may be asked_ about prior bad acts if those acts _relate to his veracity_

Question 101

What are the procedural requirements for impeaching a witness based on prior bad acts (without conviction)?

Answer 101

Proof * _Only intrinsic_ evidence is allowed * Once a witness gives an answer, the cross-examiner is _stuck with it_ unless: * Extrinsic evidence can be introduced for _some other reason_ (e.g., bias) Basis * Cross-examiner must have a _good faith basis_ to believe that the bad act occurred

Question 102

Can a witness be impeached by asking them whether they were arrested for a crime involving dishonesty?

Answer 102

No. This is extrinsic evidence. It is not a conviction. It is not asking the witness whether they did it.

Question 103

Can a witness for the prosecution be impeached by asking whether they were arrested for a crime a month ago and are awaiting trial on those charges?

Answer 103

Yes, if it is a criminal trial because it shows _bias and a motive to lie_. The witness may have a reason to help the prosecution and avoid charges.

Question 104

When can a witness's arrests be used for impeachment?

Answer 104

Impeachment based on the target witness's veracity * No. * An arrest is not a conviction * An arrest is not a prior bad act Impeachment based on a character witness's knowledge * Yes. * Arrests affect the character witness's opinions and reputation Impeachment based on the target witness's bias * Yes. * Arrests may make a witness biased against law enforcement * Arrests may make a witness biased in favor of law enforcement

Question 105

What does it mean to impeach a witness based on contradiction?

Answer 105

A witness may be impeached by showing that the witness _made a mistake_ or _lied about a fact that he testified to **during direct examination**_

Question 106

How can you impeach a witness based on contradiction?

Answer 106

If the contradiction goes to an issue _significant to the case_: * It may be proven by _extrinsic evidence_ If the contradiction goes to an issue _collateral_ to the case: * It may be proven by _intrinsic evidence_ * And the cross-examiner is _stuck_ with the response

Question 107

Can a party impeach his own witness?

Answer 107

Yes. Any party may impeach any witness. E.g., victims of domestic abuse often have a change of heart and choose not to testify against their boyfriend

Question 108

If a witness testifies that she can't remember something, can the witness be impeached with a prior inconsistent statement?

Answer 108

No. This is not an inconsistent statement. The source of the prior inconsistent statement can be used to refresh the witness's recollection though

Question 109

What is the general rule regarding rehabilitation of a witness?

Answer 109

A witness generally can only be rehabilitated _after his credibility is attacked_ Introducing evidence of a witness's credibility _before it is attacked_ is called _bolstering_, which is generally impermissible Exception: * A _testifying witness_ can be rehabilitiated * Even _before_ his credibility is attacked * If done using a prior _statement of identification_ _Note_: the statement of identification must have been made by a testifying witness who is now subject to cross-examination

Question 110

What are the methods of rehabilitation? In what form can the evidence be used?

Answer 110

1. Good _character for truthfulness_ * When a witness's character for truthfulness has been attacked, the opposing party may introduce corresponding evidence of the witness's good character for truthfulness * But only in the form of: * Reputation * Opinion (if not in Virginia) * And not in the form of: * Specific acts 2. Prior _consistent statement_ * _​​_May be used if: * _Consistent_ with the witness's testimony, and * The opposing party suggested that some _recent event_ gave the witness a _motive to lie_ * The prior statement was made _before that event_ * Admissible as: * _Rehabilitiation_ evidence * _Substantive_ evidence (i.e., hearsay exception)

Question 111

In diversity cases, when do federal courts apply state evidence rules?

Answer 111

Federal courts apply state evidence rules with respect to: * Burdens of proof and presumptions * Competency of witnesses (including Dead Man's statute) * Privileges

Question 112

What privileges do federal courts recognize?

Answer 112

* Attorney-client * Clergy * Spousal (communication and testimonial) * Psychotherapist-patient

Question 113

What privilege does a majority of the states, including Virginia, recognize that Federal law does not recognize?

Answer 113

Physician-patient But only in _civil_ trials

Question 114

Why is hearsay not usually an issue when evidence is objected on the basis of privilege?

Answer 114

The evidence is almost always offered against the party who made the statement, so it is admissible under the party opponent hearsay exception.

Question 115

What are the elements of the attorney-client privilege?

Answer 115

The attorney-client privilege protects: * Any _communication_, * _Between lawyer and client_ (or their represenatives) * That is _confidential_ and * For the purpose of _providing_ _legal services_ Unless: * The privilege is _waived by the client_ * An _exception_ applies

Question 116

What are not deemed communications for purposes of the attorney-client privilege?

Answer 116

* Underlying information * Pre-existing documents from before the attorney-client relationship began * Physical evidence

Question 117

Who is an attorney for purposes of the attorney-client privilege?

Answer 117

* Member of the bar * Someone the client _reasonably believes_ is a member of the bar * The lawyer's _representatives_ * E.g., secretaries, paralegals, translators, investigators, accounts * But _only if_ helping the attorney provide legal services

Question 118

Who is a client for purposes of the attorney-client privilege?

Answer 118

* A person _seeking to become a client_ * A _representative_ of the client * E.g., corporate employee

Question 119

What does confidential mean for purposes of the attorney-client privilege? What is the joint client rule?

Answer 119

There is no privilege if: * The client knows that a third-party is listening * The client asks his attorney to disclose the information to a third party Joint client rule * Two clients with a common interest who have the same attorney can speak freely in front of eachother without waiving the privilege * If the joint clients have a dispute with eachother later on, the privilege does not apply between them (i.e., whatever they said between one another can be disclosed by one another)

Question 120

How can the attorney-client privilege be waived?

Answer 120

* _Voluntary_ waiver * Only the _client_ can waive the privilege * When the client dies, the client's _estate_ can waive it * _Subject matter_ waiver * Voluntary waiver of the privilege as to some communications also waives the privilege as to other communications if: * Partial disclosure is _intentional_, and * Disclosed and undisclosed communications concern the _same subject matter_, and * _Fairness_ requires that the disclosed and undisclosed communications be _considered together_ * _Inadvertent_ waiver * Inadvertent disclosures do not waive the privilege if the client: * Took reasonable steps to _prevent_ the disclosure, and * Took reasonable steps to _correct_ the mistake

Question 121

What are the exceptions to the attorney-client privilege?

Answer 121

* Future _crime or fraud_ * _​_E.g., client tells attorney about a _future_ crime or fraud he will commit - attorney can disclose * Advice _in issue_ * _​_E.g., client defends based on the advice his attorney gave him - client must disclose * Attorney-client _dispute_ * _​_E.g., client sues attorney for malpractice

Question 122

What are the elements of the doctor-patient privilege?

Answer 122

The doctor-patient privilege protects: * Any _communication_ _or information_ * Acquired by a _doctor_ from a patient * That is _confidential_, and * For the purposes of _diagnosis or treatment_

Question 123

What is the difference between Federal law and Virginia law with respec to the doctor-patient privilege?

Answer 123

Federal law * Recognizes only a _psychotherapist_-patient privilege (i.e., professional certified to diagnose mental or emotional illnesses) Virginia law * Recognizes a broader _physician_-patient privilege * But only in _civil_ trials * All doctor-patient privileges are limited to _​_this

Question 124

Is the blood alcohol content report taken of a defendant protected by the doctor-patient privilege?

Answer 124

No. It is not a communication and it is not confidential.

Question 125

What are the elements of the spousal communications privilege?

Answer 125

Communications between spouses are protected if: * The couple was _married_ * _At the time_ of the communication, and * The communication was _confidential_

Question 126

Who can waive the spousal communication privilege?

Answer 126

It must be waived by _both spouses_

Question 127

What are the elements of the spousal testimonial privilege?

Answer 127

A person cannot be compelled to testify against his spouse in: * A _criminal_ trial * When the spouses are _still married_

Question 128

Who can waive the spousal testimonial privilege?

Answer 128

Only the witness spouse

Question 129

What are the exceptions to (both of) the spoual privileges?

Answer 129

* Joint participants in a crime or fraud * The otherwise privileged communications are i_n furtherance_ of a crime or fraud that both spouses are involved in * Spousal or child abuse * One spouse is accused of crime or tort against: * The other spouse, or * A minor child residing in their household

Question 130

What should you do anytime a question seems to involve hearsay?

Answer 130

Consider _both_: * Hearsay * Confrontation clause * Only applicable if criminal case

Question 131

What is the definition of hearsay?

Answer 131

* An _assertion_ (oral or written) * By a _person_ (i.e., declarant), not an animal or machine * Offered to prove _the truth of the matter asserted_

Question 132

What are the principal categories of non-hearsay purposes?

Answer 132

1. Impeachment * E.g., prior inconsistent statement offered to prove that the witness is inconsistent 2. Verbal acts * E.g., one person made an offer and one accepted 3. To show the effect on a person (usually the defendant) who heard or read the statement * 4. Circumstantial evidence of the declarant's state of mind

Question 133

When are verbal acts not hearsay?

Answer 133

When the out of court statements had _independent legal significance_ (i.e., the law attached rights and obligations to the words simply because they were said) * Examples * Words of _offer_, _repudiation_, or _cancellation_ of a contract * Words that have the effect of making a _gift_ or _bribe_ * Words that are themselves an act of _perjury_, _criminal misrepresentation_, or _defamation_

Question 134

When will an out of court statement not be hearsay because it shows the effect on the person who heard or read it?

Answer 134

If the statement: * Is offered to show that someone _heard or read it_ * So the jury knows how it _affected their state of mind_ * And the person's state of mind is _relevant_ Examples: * Hearing/reading something can: * Put someone _on notice_ * Give them a _motive_ * Make their beliefs and actions _reasonable_

Question 135

When will an out of court statement not be hearsay because it serves as circumstantial evidence of the speaker's state of mind?

Answer 135

When the statement unintentially reveals something relevant about the speaker's state of mind Examples * Statements demonstrating insanity * Lies that demonstrate a consciousness of guilt * Questions that demonstrate a lack of knowledge

Question 136

When is a prior statement of a testifying witness excluded from the definition of hearsay?

Answer 136

If the prior statement is: 1. A statement of _identification_ 2. A prior _inconsistent_ statement that was: * Made under _oath_ * During a _hearing or deposition_ 3. A prior _consistent_ statement that was: * Used to _rehabilitate_ a witness who was impeached with evidence of motive * And made _before the recent event_ suggesting motive

Question 137

What are the top ten hearsay exceptions?

Answer 137

1. Statement by an opposing party 2. Former testimony 3. Forfeiture by wrongdoing 4. Statement against interest 5. Dying declaration 6. Excited utterance 7. Present sense impression 8. Statement of then-existing mental, emotional, or physical condition 9. Statement for purpose of medical treatment or diagnosis 10. Business and public records Also remember: * Past recollection recorded * Learned treatises

Question 138

What is the rule for the hearsay exception for statements by an opposing party?

Answer 138

Any statement made by a party is _admissible_ if it is _offered by his opponent_ _Notes_: * These used to, and may still be, referred to as admissions rather than statements * Think of Miranda rights - anything you say can and will be used against you in a court of law

Question 139

When can the statement of an agent or employee of a party be used against the party under the hearsay exception for statements of opposing parties?

Answer 139

If the statement: * Concerns a matter _within the scope_ of the agency or employment, and * Was made _during_ the agency or employment

Question 140

When can the statement of a defendant's co-conspirators be used against the defendant under the hearsay exception for statements of opposing parties?

Answer 140

If the statement was made _during_ and _in furtherance_ of the conspiracy

Question 141

What hearsay exceptions require that the declarant be "unavailable"?

Answer 141

1. Former testimony 2. Forfeiture by wrongdoing 3. Dying declaration 4. Statement against interest

Question 142

When is a declarant unavailable?

Answer 142

* Privilege * Refusal to testify * Lack of memory * Illness or death * Absent from jurisdiction

Question 143

What are the elements of the hearsay exception for former testimony?

Answer 143

* The declarant is _unavailable_ * The prior statement was made in a _trial or deposition_ * The prior statement is _offered against_ a party who, on the prior occasion, had: * An _opportunity_, and * A similar _motive_ (relevance of testimony in prior trial must be substantially similar to its relevance now) * To _cross-examine_ or develop the testimony

Question 144

What are the elements of the hearsay exception for forfeiture by wrongdoing? What is the burden of proof regarding wrongdoing?

Answer 144

A declarant's out of court statement may be offered against any party who: * _Knew_ the declarant would be testifying, and * _Wrongfully caused_ the declarant to be unavailable * For the _specific purpose_ of preventing the witness from testifying Burden of proof: * Preponderance of the evidence

Question 145

What are the elemtns of the hearsay exception for statements against interest?

Answer 145

* Declarant is _unavailable_ * Statement is against defendant's _proprietary_, _pecuniary_, or _penal_ interest Criminal cases: * Defendant's penal interest must be _corroborated_

Question 146

What is the difference between: * Statement against interest * Statement of party opponent

Answer 146

Unlike a statement of a party opponent, a statement against interest: * Must have been _against interest_ when it was made * _Any person_ (not merely a party) can make a statement against interest * _Personal knowledge_ is not required * The declarant must be _unavailable_

Question 147

What should I know about the statement against interest exception for the bar exam?

Answer 147

It is often not the correct answer on the exam because there are so many details required for it to be the right one: * Declarant must be unavailable * Statement must be against interest * It must not be offered against a party who said it

Question 148

What are the elements of the hearsay exception for dying declarations? In what type of case will it arise?

Answer 148

* Declarant is _unavailable_ * Statement was made under a belief of _impending_ and _certain_ death * Statement concerns _circumstances_ of impending death Type of case: * Homicide prosecution * Any civil trial

Question 149

What are the elements of the hearsay exception for excited utterances?

Answer 149

* Statement concerns a _startling event_, and * Was made while the declarant was still _under the stress of the excitement_ caused by the event _Note_: unavailability is NOT required

Question 150

What are the factors that make make a statement "excited"?

Answer 150

* Nature of the event - e.g., murder * Time that has passed * Visual clues - e.g., exclamation point!

Question 151

What are the elements of the hearsay exception for present sense impression?

Answer 151

* Statement _described_ an event, and * Was made either: * _While the event_ took place, * _Immediately_ thereafter

Question 152

What are the elements of the hearsay exception for statements of then-existing mental, emotional, or physical condition?

Answer 152

* Statement concerns the declarant's _then-existing_: * Physical condition * Mental or emotional condition * Which _include_: * Future intent * But _not_: * Memory, or * Belief about a past condition

Question 153

What are the elements of the hearsay exception for statements made for purpose of medical diagnosis or treatment?

Answer 153

Statement must be made: * For the _purpose_ of: * Diagnosis * Treatment * _Concerning_: * Present symptoms * Past symptoms * Cause of the patient's condition * But only if: * _Reasonably pertinent_ to the diagnosis or treatment

Question 154

What are the elements of the hearsay exception for business and public records? Is anything additional for public records? What about criminal trials?

Answer 154

Records must: * Be of a _business_ (any type, including public agencies) * Be made in the _regular course of business_ (relates to business) * Be _r__egularly required_ by the business * Have been _made contemporaneously_ with the event recorded * Consist of: * Information observed by an _employee_ of the business * A statement within some _other hearsay exception_ _Public records_ * May also include _records by public employees_ after an accident * E.g., police officer's conclusion about fault in an accident report _Criminal trials_: * A police report _cannot be_ offered against a criminal defendant

Question 155

How do you lay the foundation for (i.e., authenticate) business records?

Answer 155

1. Call a witness * Call a knowledgeable witness who can testify to the elements for the hearsay exception 2. Self-authenticate * Submit a written certification under oath testifying to the elements of the hearsay exception

Question 156

What is the confrontation clause?

Answer 156

Under the 6th amendment, _criminal_ defendants have a right to be _confronted_ by the witnesses against them So, prosecution cannot offer _testimonial hearsay_ in violation of the defendant's right to _cross-examine_ the declarant

Question 157

For purposes of the confrontation clause, when is the defendant's right to cross-examine witnesses against him satisfied?

Answer 157

1. If the defendant had a chance to cross-examine the witness when: * The statement was made * Evidence was offered at trial 2. If the defendant's misconduct waived his right to confront

Question 158

For purposes of the confrontation clause, what is testimonial?

Answer 158

* Grand jury testimony, by definition * Statements in response to a police interrogation: * If: * The questions are to _establish past facts_ potentially relevant to a criminal prosecution * But not if: * The questions are to assist the police in an _ongoing emergency_ * _​_Police reports * But not business records

Question 159

If hearsay testimony is admitted, can the other party do anythign?

Answer 159

Yes. Use any impeachment methods to attack the declarant's credibility that would have been available had they actually testified

Question 160

Who decides questions of credibility? What forms does this come in?

Answer 160

The jury Credibility comes in three forms: 1. Whether a witness has _personal knowledge_ 2. Whether an exhibit is _authentic_ 3. Whether the defendant is in fact the person who committed a _bad act_ offered as MIMIC evidence

Question 161

What is the judge's role with regard to questions of credibility?

Answer 161

To ensure that there if _sufficient_ evidence for a _reasonable juror_ to conclude that the conditional fact is true

Question 162

Who decides questions of admissibility? What are examples?

Answer 162

The judge Examples: * Whether testimony is _admissible_ * Whether a communication is _privileged_ * Whether an expert is _qualified_

Question 163

What is the burden of proof for questions of admissibility? What can the judge consider in making this determination?

Answer 163

Always preponderance of the evidence, and the judge can consider inadmissible evidence