How to Ace FYLSE/Evidence Outline

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Legal Relevance[edit]

A: I told him I’d read several police reports where Gina had called the police after he’d beaten her.
—J03Q3

Settlement Offer[edit]

Evidence of compromises or offers to compromise is inadmissible to prove liability, because public policy favors settlement of dispute without litigation.

Plaintiff called Tom, TruckCo's president, as a hostile witness. Plaintiff asked the following question: "Didn't you call Mary the day after the crash, tell her that it was Boyd's fault, and offer to pay Hal's funeral expenses?
—F93Q3
Phil testified that, right after he discovered his hair loss, he called Dirk and told Dirk what had happened. Phil testified that Dirk then said: (1) “I knew I put too many chemicals in the solution I used on you, so won’t you take $1,000 in settlement?”
—F02Q6

Payment of Medical Expenses[edit]

Evidence that a party offered to pay the injured party's medical bill is not admissible, since such payments may be prompted by humanitarian motives, but any admissions of facts admissible.

Plaintiff called Tom, TruckCo's president, as a hostile witness. Plaintiff asked the following question: "Didn't you call Mary the day after the crash, tell her that it was Boyd's fault, and offer to pay Hal's funeral expenses?
—F93Q3

Subsequent Remedial Measure[edit]

The evidence of remedial measures taken after the incident are not admissible for public policy reasons of encouraging remedial actions.

While Pam was crossing the street toward her husband, Will, she was struck by a pizza delivery truck being driven by Carl, an employee of Dan's Pizza Parlor (Dan's).

Pam sued Dan's, alleging the negligence of its driver, Carl, and seeking damages for her serious personal injuries. Dan's answer admitted that Carl was its employee and was acting within his employment at the time of the accident, but denied that Carl was negligent.

Despite a diligent search by Pam, Carl cannot be located. At trial, the following occurred:

1. Pam called as a witness Erma, head of personnel for Dan's, who testified that Carl was fired the day after the accident, and that Carl had a distinctively raspy voice.

—J91Q4
Phil testified that, right after he discovered his hair loss, he called Dirk and told Dirk what had happened. Phil testified that Dirk then said: (2) “I fixed the solution and now have it corrected.”
—F02Q6

Liability Insurance[edit]

Evidence that a person was insured is not admissible on the question of whether he or she was negligent, but may be admissible to prove ownership and control.

2. Plaintiff then asked Tom: "Didn't TruckCo have a liability insurance policy covering the truck driven by Boyd at the time of the collision?"
—F93Q3
Phil testified that, right after he discovered his hair loss, he called Dirk and told Dirk what had happened. Dirk then said: (3) “Don’t worry because Insco, my insurance company, told me that it will take care of everything.”
—F02Q6

Hearsay[edit]

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

Argumentative[edit]

A lawyer may not use his or her questions on direct examination to argue the facts or issues in a case.

Where were you when you saw the truck hit Walker?
— J01Q3

Witness Competency[edit]

A witness is competent to testify if the witness has personal knowledge and is capable of understanding the oath or affirmation required of all witnesses.

Authentication[edit]

To be admissible, documentary evidence must be authenticated as being wha it purports to be.

Letter[edit]

Phil produced a letter at trial addressed to him bearing the signature “Dirk.”
—F02Q6

Voice Recording[edit]

A witness who knows the person's voice must testify that the voice on the tape is the voice of the person.

The prosecution called Jan, the night janitor at Dan’s business, to testify that the evening before the fire, as Jan was walking past Dan’s office, Jan heard a male voice say, “Gasoline is the best fire starter.” Jan knew Dan’s voice, but because the office door was closed and the voice muffled, Jan could not testify that the voice was Dan’s.
—J05Q4

Admission[edit]

A statement made by a party offered against the party by the opposing party that is adverse to the party's interest is adverse as non-hearsay. The statement did not have to be against the party's interest at the time it was made.

Plaintiff called Tom, TruckCo's president, as a hostile witness. Plaintiff asked the following question: "Didn't you call Mary the day after the crash, tell her that it was Boyd's fault, and offer to pay Hal's funeral expenses?
—F93Q3
A: I walked out to where this guy was lying in the street. Dan, the driver for Truck Co., was kneeling over him. A woman was kneeling there too. She spoke calmly to Dan and said, "It's all your fault," and Dan said nothing in response.
—J01Q3
Dan was charged with arson. The prosecution attempted to prove that he burned down his failing business to get the insurance proceeds...The prosecution then called Scribe, the bookkeeper for Dan’s business. Scribe testified that, two months before the fire, Dan told Scribe to record some phony accounts receivable to increase his chances of obtaining a loan from Bank...Scribe further testified that, two days after the fire, Dan again told her to create some phony accounts receivable, but that she refused to do so.
—J05Q4
"After the accident, I went over to the cab. Don was hurting real bad, and Don said, "This wouldn't have happened if I hadn't been in such a hurry to pick up a fare."
—J87Q1

Past Recollection Recorded[edit]

Plaintiff called Officer Reno. Reno testified that Royd had given him a statement after the crash. Reno then read the following from his report: "Boyd stated he fell asleep at the wheel and ran over the enter line."
—F93Q3

State of Mind[edit]

The statement is not offered for the truth of the matter asserted but to show its effect on the recipient's state of mind.

1. Roomi, Vickie's roommate, testified for the prosecution that Vickie told her as Vickie was leaving their apartment on the night of her death, "Dan and I are going to see The Graduate at First Theater."
—J92Q3
A: I went over to Dan and said to him, “Your ex-girlfriend Gina is living with me now.”
—J03Q3
A: He said, “Yeah, and my buddies tell me you’re treating her like dirt.”
—J03Q3
A: I said that he was a fine one to be talking.
—J03Q3

Present Intent[edit]

A statement made by a person showing an intent to do something is an exception to the hearsay rule and may be admissible to show that the declarant actually followed through with the act in question.

Tom, an acquaintance of Daniel, testified for the prosecution that Daniel had complained to Tom that Victor had “burned” him several times and stated that he (Daniel) would “burn him one of these days.”
—J04Q4
Dan was charged with arson. The prosecution attempted to prove that he burned down his failing business to get the insurance proceeds...The prosecution then called Scribe, the bookkeeper for Dan’s business. Scribe testified that, two months before the fire, Dan told Scribe to record some phony accounts receivable to increase his chances of obtaining a loan from Bank...Scribe further testified that, two days after the fire, Dan again told her to create some phony accounts receivable, but that she refused to do so.
—J05Q4

Leading[edit]

A leading question is not allowed on direct examination. Leading questions are allowed, on cross-examination, preliminary matters, hostile witnesses and witnesses who are having trouble remembering.

Q: Would it refresh your recollection if I told you it was $27,520?
—F92Q6
Q: And you've lived there for the past eight years?
—F92Q6
Q: Is that when he pulled the club out of his pocket?
—J03Q3
On cross-examination, the prosecutor asked Daniel, “Isn’t it true that the lighter found at the garage had your initials on it?” The prosecutor urged the jury to consider the improbability of Daniel’s claim that he had accidentally spilled the gasoline.
—J04Q4

Assumes Fact Not in Evidence[edit]

Q: Q: Where were you when you saw the truck hit Walker?
—J01Q3
Q: O.K., what happened after he rushed toward you screaming and waiving a knife?
—F92Q6
Q: Is that when he pulled the club out of his pocket?
—J03Q3
On cross-examination, the prosecutor asked Daniel, “Isn’t it true that the lighter found at the garage had your initials on it?” The prosecutor urged the jury to consider the improbability of Daniel’s claim that he had accidentally spilled the gasoline.
—J04Q4

Compound[edit]

Q: I see. So you didn't say anything to him and you didn't provoke him in any way?
—F92Q6

Speculation[edit]

A witness must base his testimony on personal knowledge and cannot speculate as to the conditions surrounding his or her answer.

A: Well, some people had their umbrellas up, so I’m pretty sure it must have been raining.
—J01Q3

Narrative[edit]

The lawyer interrogating the witness on direct examination must ask specific questions and lead the witness through his or her testimony.

Q: Tell me everything that happened.
—J01Q3
Q: Tell the jury everything that happened after that.
—J03Q3

Best Evidence Rule[edit]

This rule requires that the contents of a writing be introduced where (1) writing is of consequence in the matter; (2) a witness's knowledge comes from the writing and the witness testifies as to the actual contents of the writing.

The prosecution introduced into evidence Dan's constitutionally obtained written statement that on the night of Vickie's murder he had gone alone to Second Theatre to see "Cinderella." The prosecution then called Manny, the manager of Second Theater, who produced a photocopy of the Second Theater's computer printout that listed the movies shown during the two-week period around Vickie's death. It reveals that at no time during that period did Second Theater show Cinderella. The photocopy of the computer printout was received into evidence.
—J92Q3
A: I said that he was a fine one to be talking. I told him I’d read several police reports where Gina had called the police after he’d beaten her.
—J03Q3
Phil produced a letter at trial addressed to him bearing the signature “Dirk.” The letter states that Dirk used an improper solution containing too many chemicals on Phil for his hair treatment. Phil testified that he received this letter through the mail about a week after the incident at the barbershop. The court admitted the letter into evidence.
—F02Q6

Business Record Exception[edit]

A written statement made in the regular course of business near the time the information was received is admissible if the declarant has personal knowledge and circumstances indicate the record is trustworthy.

The prosecution introduced into evidence Dan's constitutionally obtained written statement that on the night of Vickie's murder he had gone alone to Second Theatre to see "Cinderella." The prosecution then called Manny, the manager of Second Theater, who produced a photocopy of the Second Theater's computer printout that listed the movies shown during the two-week period around Vickie's death. It reveals that at no time during that period did Second Theater show Cinderella. The photocopy of the computer printout was received into evidence.
—J92Q3
A: No, but it's on the bill from the University Hospital.
—F92Q6
Plaintiff called Officer Reno. Reno testified that Royd had given him a statement after the crash. Reno then read the following from his report: "Boyd stated he fell asleep at the wheel and ran over the enter line."
—F93Q3

Public Record Exception[edit]

Excited Utterance[edit]

An excited utterance is a statement made under the stress of excitement of some event.

A: This guy rushed in to my store and shouted, "Call an ambulance! A truck just ran a red light and hit someone."
—J01Q3
A: I heard somebody yell, “Watch out- he’s gonna hit you again!” I ducked, but the club hit me on the top of my head. The last thing I remember, I saw a foot kicking at my face.
—J03Q3
Pam called as a witness who testified: "Both J and some guy I don't know reached my wife's side in a matter of seconds. The other guy said, 'That driver just wasn't looking where he was going.' "
—J91Q4
b. Victor testified for the prosecution that, while Victor was trying to douse the flames, Daniel laughed at him and ran out of the garage.
—J04Q4
"After the accident, I went over to the cab. Don was hurting real bad, and Don said, "This wouldn't have happened if I hadn't been in such a hurry to pick up a fare."
—J87Q1

Present Sense Impression[edit]

A present sense impression is a statement made contemporaneous with an observation or a physical condition that is so trustworthy because there is not much time for contemplation to lie.

A: This guy rushed in to my store and shouted, "Call an ambulance! A truck just ran a red light and hit someone."
—J01Q3
A: I heard somebody yell, “Watch out- he’s gonna hit you again!” I ducked, but the club hit me on the top of my head. The last thing I remember, I saw a foot kicking at my face.
—J03Q3
"After the accident, I went over to the cab. Don was hurting real bad, and Don said, "This wouldn't have happened if I hadn't been in such a hurry to pick up a fare."
—J87Q1

Declaration Against Interest[edit]

A statement made by an unavailable declarant is admissible if it is against the declarant's financial or penal interest when it was made.

"After the accident, I went over to the cab. Don was hurting real bad, and Don said, "This wouldn't have happened if I hadn't been in such a hurry to pick up a fare."
—J87Q1

Dying Declaration[edit]

A statement made by an unavailable declarant who believes death is imminent relating to circumstances or threatened death with personal knowledge is admissible.

Statement of Past Physical Condition[edit]

A statement or description of a past symptom, sensation or condition is admissible if made for the diagnosis or treatment of the declarant, and if pertinent to such diagnosis or treatment.

Character Evidence[edit]

No bolstering witness. Evidence of a person's character or disposition is inadmissible proof of the conduct of that person except as otherwise provided by law. Character evidence is admissible where character is an ultimate issue in the case.

Pro, a member of the same country club to which Sally belongs, testified for the defense that Sally has a reputation at the Club for lying about her golf scores.
—J92Q3
Sally, who had dated Dan about a year prior to Vickie's death, testified for the prosecution that when she rebuffed Dan's sexual advances he dragged her into an alley by some garbage containers, produced a red scarf, and attempted to strangle her.
—J92Q3
The prosecution's first witness was Sam, a cook at Cafe, who testified, over objection, that just prior to the time Cafe burst into flames, Bart, another waiter, ran into the kitchen shouting that Dave was spilling gasoline all over the lobby, and that someone should call the police because what Dave was doing would kill them all. Bart cannot be located by either party.
—J90Q4
Plaintiff called Officer Reno. Reno testified that Royd had given him a statement after the crash. Reno then read the following from his report: "Boyd stated he fell asleep at the wheel and ran over the enter line."
—F93Q3
A: You bet I do. I know Gina to be a truthful person.
—J03Q3
Cabco's counsel asked Paul on cross-examination if he had ever had a traffic accident. Paul answered: "No." Cabco's counsel then introduced a properly authenticated copy of a three-year-old unrelated conviction of Paul for vehicular manslaughter, a felony.
—J87Q1

Impeachment[edit]

Under state and federal law, prior felony convictions are admissible to impeach a witness.

Q: You testified that you didn't know what had provoked Don, but the day before the incident you expelled six of his students for no reason, changed the lock on his office, and scraped the parking sticker off his car. Isn't that correct?
—F92Q6
In his defense, Daniel testified that he was carrying a gasoline container, tripped, and spilled its contents. He denied possessing the lighter, and said that the fire must have started by accident. He said that he ran out of the garage because the flames frightened him.

d. On cross-examination, the prosecutor asked Daniel, “Isn’t it true that the lighter found at the garage had your initials on it?” The prosecutor urged the jury to consider the improbability of Daniel’s claim that he had accidentally spilled the gasoline.

—J04Q4
Cabco's counsel asked Paul on cross-examination if he had ever had a traffic accident. Paul answered: "No." Cabco's counsel then introduced a properly authenticated copy of a three-year-old unrelated conviction of Paul for vehicular manslaughter, a felony.
—J87Q1

Physician-Patient Privilege[edit]

Vicky's physician, Doc, testified as a witness for Cabco that while Vicky was being prepared for surgery, he asked her how the accident happened, and she responded: "Don't tell anybody, Doc, but Paul and I were smoking marijuana. I dropped the lighted joint, and Paul had his head down looking for it when we hit the cab."
—J87Q1

Spousal Witness Privilege[edit]

The spouse cannot testify against the other spouse.

In a rape prosecution against Roe, the following events occurred at the trial by jury:

4. Roe's wife voluntarily testified for the prosecution that Roe retumed home on the night in question in an agitated state with scratches on his arm.

—84Q5

Marital Communications Privilege[edit]

Not Responsive[edit]

A: No, we always got along well, and when he came after me that morning he had a lethal weapon.
—F92Q6

Personal Knowledge[edit]

Q: What were the weather conditions just before the accident?
—J01Q3
A: Dan must have kicked and hit me more after I passed out, because when I came to in the hospital, I had bruises all over my body.
—J03Q3

Expert Testimony[edit]

An expert may testify if: the matter is sufficiently beyond common experience and would assist the trier of fact. Two requirements must be met: (1) witness must qualify as an expert; (2) there must be a proper basis for his or her opinion.

In a rape prosecution against Roe, the following events occurred at the trial by jury:

Roe testified in his defense and denied the act, saying that he had never been near Tess' house. In rebuttal, the prosecution offered one of Roe's shoes, seized in an illegal search of Roe's house. The shoe was introduced together with expert testimony that a shoe print identical to the shoe print made by Roe's shoe had been located outside the window the rapist had used to enter Tess' house.

—84Q5
In his defense, Dirk called Chemist, who testified as an expert witness that he applied to his own hair the same solution that had been used on Phil and that he suffered no loss of hair.F02Q6
The defense next called Dr. Hix, a chemist, who testified, over objection, that based on his pretrial review of standard scientific treatises, as well as his own exper­imentation, it was his expert opinion that although use of gasoline as a cleaning fluid cannot be recommended, its use for that purpose in normal circumstances is reason­ably safe, if the gasoline vapor is kept from contact with hot filaments or burning objects.
—J90Q4

Federal Catchall Exception[edit]

Judicial Notice[edit]

Judicial notice is proper where facts are capable of verification through sources of unquestioned accuracy. In a civil case, if a fact is judicially noticed and the judge so instructs the jury that fact is conclusively established.


In rebuttal, the prosecution, over objection, asked the judge to take judicial notice that gasoline vapor is so combustible that use of gasoline as a cleaning fluid in space occupied by other persons constituted gross and reckless disregard for human life, as a matter of law. The court stated that it took such notice.
—J90Q4
At the prosecutor's request, the court took judicial notice that on the night of Vickie's death, First Theater was showing The Graduate.
—J92Q3
Phil’s attorney called Wit to testify that the type of hair loss suffered by Phil was abnormal. Before Wit could testify, the judge stated that he had been a trained barber prior to going to law school. He took judicial notice that this type of hair loss was not normal and instructed the jury accordingly.
—F02Q6
At the request of the prosecutor, the judge took judicial notice of the properties of gasoline and its potential to cause serious bodily injury or death when placed on the body and ignited.
—J04Q4