WA Bar Exam - Evidence

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WA Rules of Evidence

Objections

Timely and specific objection must be made to preserve an issue for appeal and must be made as soon as the basis becomes apparent

Leading questions

Prohibited on direct but allowed on cross; allowed to establish preliminary facts or lay foundation; allowed to question person with diminished capacity or expert

Narrative questions

Questions that call for narrative/compound answer generally not allowed

Limiting instruction

Evidence admissible for a limited purpose or parties are introduced with limiting instruction

Judicial comment

WA judges must not make comments on evidence although they may question a witness

Judicial notice

The court may take judicial notice of facts not subject to reasonable dispute as they are generally known or capable of accurate and ready determination by reference to authoritative sources

Relevance

Relevant evidence has any tendency to make any material fact more or less likely than it would be without the evidence.
Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury

Subsequent remedial measures

Offers to pay medical bills/settle/pleas/insurance are inadmissible to show recognition of liability/fault but may be admitted for other purposes with limiting instruction

Privilege

Statements made in confidential communication are secured by privilege when privilege is not waived

List of privileges

-attorney
-physician
-psychologist
-clergy
-spouses
-mediator
-interpreter
-journalist
-public officer

Journalist privilege

Journalists enjoy a qualified privilege based in common law.
Judge will WEIGH competing interests:
- reporter in protecting confidentiality of source
- free flow of information to the press
- plaintiff's interest in pursuing her civil claim

Spousal incompetence

A spouse cannot testify against other spouse if married at time of trial (or indictment in criminal case)

Spousal communication

Spouse against whom testimony is being offered can assert privilege to any communications made while in marriage even if divorced at time of trial
EXCEPT:
child abuse/domestic violence

Admissibility of character evidence (general)

Evidence of character is NOT admissible to show defendant acted in conformity therewith on a particular occasion

Admissibility of character evidence in civil cases

Character evidence is admissible only if it is directly in issue (e.g., defamation, child custody, negligent hiring, etc)

Admissibility of character evidence in criminal cases

Criminal defendant may admit reputation/opinion evidence of his good character and prosecution may so rebut

Prior bad acts

Admissible in criminal case for purposes of showing motive/intent/plan/signature crime, but not as evidence that defendant did current bad act

Habit/routine practice

Regular response to repeated stimulus is admissible to show conformity with habit or routine practice.

Sex offenses

In criminal sex offense action evidence of commission of sex offense (not necessarily conviction) is admissible

Character of victim

Criminal defendant may introduce evidence of bad character of victim to show victim was first aggressor

Rape shield law

evidence of prior sex acts with victim or victim's sexual history, is inadmissible, except to show that victim consented

Character of witness

Witness's truthfulness may be challenged by reputation/opinion/acts and rebutted by similar means

Character impeachment of witness

May be impeached by crime of dishonesty:
Theft (not burglary), fraud, perjury
Cannot be impeached by crime punishable by death or >1year committed more than 10 years ago, unless very probative

Competence

Anyone with personal knowledge capable of accurately perceiving facts is competent (including mentally disabled) with no minimum age

Child competence

Court will assess a child's individual ability to testify

Expert competence

Any witness may qualify as expert if he has knowledge, skill, expertise, training, or education

Dead Man's Statute

Representative of estate with interest may not testify in his own affect about decedent's statement

Lay opinion

Lay testimony is admissible if it is rationally based on personal perception, but not on scientific or specialized knowledge, and is helpful to determination of fact by the fact finder

Expert opinion

Expert may testify if subject matter is beyond understanding of average juror

Frye test for expert

Expert may base opinion on personal knowledge/inadmissible evidence so long as that scientific principle is generally accepted in that scientific field

Foundation

Evidence must be sufficient to support a finding that the matter in question is what its proponent claims

Authentication

Witness who placed a mark/stamp/seal on real or demonstrative evidence may confirm/recognize it in the beginning of testimony to help juror asses its authenticity

Chain of custody

Physical evidence may be authenticated by testimony of witness who knows about its chain of custody

Handwriting

Must be identified by expert or compared to a known sample by jury

Voice

Voice must be recognized by witness who knows the speaker, or self-authenticated by recorded speaker

Ancient document

Document is deemed authentic if it is > 20 years old and is found in a place where it is normally found/stored

Best evidence rule

To prove the content of writing/recording/photograph, the original is required, except if it is lost/unavailable and the offering party has no fault in that.
- Duplicate is admissible unless there is genuine issue of authenticity

Self-authentication

Evidence that is unlikely to be forged
- Public documents under seal or certified copies
- Notarized documents
- Official publications
- Signed checks
- Newspapers
- Items w/trade inscriptions

ER 904

Documents must be presented to other side and are deemed admitted if not objected to within 30 days

Hearsay

Out of court statement offered for the truth of the matter asserted; must be intentional assertion and not non-assertive conduct; is not admissible unless an exception applies

Statutory non-hearsay

Statement is not hearsay if declarant is available and the statement is
1) Prior inconsistent statement under oath (not in affidavit)
2) prior consistent statement even if unsworn
3) prior identification made after perceiving
4) admission by party opponent/co-conspirator admission

12 hearsay exceptions when declarant is available

1) Present sense impression
2) Excited utterance
3) Statement of present mental state
4) Statement for purpose of receiving treatment
5) Past recollection recorded
6) Business records
7) Certified copy of public records
8) Vital statistics
9) Ancient document
11) Learned treatise
12) Statements by children < 10 yrs in abuse case

Present sense impression exception

A present sense impression describing the event/condition made during the event or immediately thereafter

Excited utterance exception

Utterance made under the stress of significant excitement/agitation/pain and about the event

Present mental state exception

Statements offered to show declarant's present mental state, emotion, or physical condition (e.g., "I'm going." or "it hurts.")

Statements for treatment exception

Statements of past/present physical condition made to a doctor or nurse for purpose of treatment or diagnosis

Past recollection recorded

A past recorded recollection that declarant once wrote (accurate when written) and now has insufficient memory of

Business records exception

Records made in 1) the ordinary course of business
2) by the custodian of records with a duty to record
3) soon after the event
-- not in anticipation of litigation, not by bystander

Certified copy of public records exception

Certified copies of public records under the seal, absence of record is also admissible

Vital statistics exception

Death/birth, religious records (baptism etc), family records (tomb stone/portrait)

Ancient document exception

Document > 20 years old and found where it was supposed to be; >10 years old for market data

Learned treatise exception

Learned treatise found to be authoritative by expert and relied on it during testimony

Statements by children exception

Statements by children < 10 years of age in abuse cases must be shown to be reliable or corroborated by other evidence

Declarant unavailability

Absent from jurisdiction, sick/dead, refuses to testify, asserts privilege, lacks memory

Exceptions where declarant unavailable

Statement can be admitted as either:
1) Former testimony given under oath for similar motive and offering party had opportunity to cross
2) dying declaration made under belief of imminent death (only in homicide and civil cases)
3) declaration against interest by non-party and must be against interest when made

Confrontation Clause

Prohibits the introduction of testimonial out of court statements against a criminal defendant unless the declarant appears as a witness or is unavailable AND defendant had prior opportunity to cross-examine concerning the statement

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