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By: Daphne Drescher, CP (Guest Blogger)

We hope this post finds you wide awake and at least partially sane on this fabulous post-Super Bowl Monday, TPS readers! Today, Daphne is stopping by The Paralegal Society to administer a pop quiz. Hey, look at it this way, if you don’t know the stuff right now – you certainly will by the end of this post! Will that document or witness statement or testimony be admissible once you get to trial? How can you tell? Issues of discoverable and admissible evidence are crucial for legal professionals to understand. So grab a piece of paper and a pen and test your knowledge!

Reprinted with permission from ProParalegal: http://proparalegal.com.

1. Evidence that tends to make a material fact more or less probable than it would be without the evidence.

a. Relevant evidence
b. Hearsay evidence
c. Direct evidence
d. Circumstantial evidence

2. Evidence of a fact from which a person may reasonably infer the existence or nonexistence of another fact.

a. Relevant evidence
b. Hearsay evidence
c. Direct evidence
d. Circumstantial evidence

3. Evidence of a fact based on a witness’s personal knowledge or observation of it.

a. Relevant evidence
b. Hearsay evidence
c. Direct evidence
d. Circumstantial evidence

4. Evidence based not on a witness’s personal knowledge, but on another’s statement, not made under oath.

a. Relevant evidence
b. Hearsay evidence
c. Direct evidence
d. Circumstantial evidence

5. It is a rule of evidence.

a. Attorney-client privilege
b. Work Product Protection
c. Both
d. Neither

6. Protection the law provides for material prepared by an attorney in anticipation of litigation or trial.

a. Attorney-client privilege
b. Work Product Protection
c. Both
d. Neither

7. Relevant evidence might be ruled inadmissible if:

a. It is unduly prejudicial
b. It is unduly confusing
c. Both
d. Neither

8. Evidence is self-authenticating if:

a. It is an original document
b. It is a certified copy of a public record
c. Both
d. Neither

9. While hearsay is generally inadmissible, exceptions are:

a. An out-of-court statement made as an excited response to a startling event
b. An out-of-court statement that describes an event as it is unfolding
c. Both
d. Neither

10. A person may testify in the form of an opinion if:

a.  He/she has specialized knowledge that will assist the jury in understanding evidence or determining a fact at issue
b. His/her opinion is based on sufficient facts or data
c. Both
d. Neither

THE ANSWERS:

Answer #1 (A) Relevant Evidence. Federal Rule of Evidence 401 defines relevant evidence exactly this way. Relevant evidence can take many forms, such as witness testimony, documents, or objects, but if it provides some proof about an issue important to the case, it is relevant. Relevant evidence is generally admissible, although there can be exceptions, as we’ll see below.

Answer #2(D) Circumstantial evidence allows the jury to infer the truth or non-truth of a fact. For example, a witness might testify, “I believe it was raining at the time of the accident because shortly afterwards, I went outside and saw wet pavement and puddles in the road.” The witness inferred from what he saw that some fact must have been true, and if the jury believes the witness, the jury might infer the same.

Answer #3 (C) Testimony based on the witness’s personal knowledge or observation is one example of direct evidence. The witness is reporting what she saw, heard, or experienced. For example, a witness might testify, “I know it was raining at the time of the accident because I felt the raindrops and got wet when I got out of the car.”

Answer #4(B) Hearsay. If a witness is attempting to prove a fact by relaying something someone else told him, it is hearsay. For example, a witness might testify, “A guy standing on the street corner told me it had been raining at the time of the accident.” Hearsay is generally not admissible as proof of the truth of the statement. However, there are exceptions, as we’ll see below.

Answer #5(C) Both attorney-client privilege and work product protection are rules of evidence that permit an attorney or a party to refuse to testify about communications between them, or that permit an attorney to withhold work she has prepared while representing her client in preparation for trial. Information and materials protected by either attorney-client privilege or work product protection are not admissible.

Answer #6(B) Any drafts, notes, investigations, strategies, legal theories, or other information prepared by an attorney on behalf of a client in relation to litigation or anticipation of trial is protected from discovery by the work product protection doctrine.

Answer #7 (C) Federal Rule of Evidence 403 states that relevant evidence may nonetheless be excluded from trial “if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” So both a and b might be reasons for otherwise relevant evidence to be ruled inadmissible at trial.

Answer #8  (B) If it is a certified copy of a public record. Such evidence would not require any witness testimony to authenticate it. On the other hand, a document is not considered self-authenticating merely because it bears an original signature; it would still require testimony that it is what it appears to be.

Answer #9 – (C) Both an out-of-court statement made as an excited response to a startling event, or an out-of-court statement describing an event as it is unfolding might be admitted at trial to prove the statements’ truth under exceptions to the hearsay rule, because such statements are thought more likely to be reliable. For example, a witness might testify, “I heard a lady outside shriek, ‘OHMIGOD, that car skidded in the rain and crashed into the other car – IT WAS AWFUL!!!!!!!’” Such testimony might be admitted as evidence about the accident under either the “excited utterance” or the “present sense impression” exceptions to the rule. (Fed. R. Evid. 803.)

Answer # 10  (C) Federal Rule of Evidence 702 states that a witness is an expert qualified to testify in the form of opinion if he is has specialized knowledge that will assist the jury in understanding a fact at issue in the case, and his opinion is based on sufficient facts or data. Therefore, both a and b are true. In addition to those, an expert must base his opinions on “reliable principles and methods.”

So how did you do on this Pop Quiz, TPS readers?

Daphne is a virtual litigation paralegal and owner of California-based Drescher ProParalegal. She is also an instructor in the Paralegal Degree Program at Empire College. For more information, visit Daphne’s website http://proparalegal.com where you can subscribe to the free Drescher ProParalegal Newsletter full of litigation practice tips and resources for legal support staff.

©2011 Drescher ProParalegal. All rights reserved.

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See…even if you weren’t totally brilliant at the beginning of this pop quiz – you certainly are now! Way to take a pop quiz while wildly increasing your personal brilliance in five minutes or less on a Monday morning. Go you!!! 

Have an absolutely fabulous day in the land of legal. We’ll see you soon.