Black Letter Law

Question 1

Dead Man Acts generally provide that a person or party interested in the event is incompetent to testify to a personal transaction or communication with:

Answer 1

The deceased, when offered against the representative or successors in interest of the deceased.

Question 2

The following are all factors in determining the relevance of evidence:

Answer 2

materiality (whether the disputed fact is at issue in the case); probativeness (whether the evidence makes the existence of the fact more probable or less probable than it would be without the evidence); proximity in time to the events in question

Question 3

Dead Man Acts apply to:

Answer 3

civil cases only

Question 4

A publication may be established as reliable by:

Answer 4

(i) the direct testimony or cross-examination admission of the expert

(ii) the testimony of another expert

(iii) Judicial notice

Question 5

Under the Federal Rules, the jury decides questions of ____.

Answer 5

relevancy of evidence

Question 6

Under the Federal Rules, the judge decides questions of ____.

Answer 6

the competency of relevant evidence

Question 7

A jury may decide certain preliminary facts regarding ____ as this issue goes to relevancy.

Answer 7

authenticity (whether a document was signed by the defendant or by a forger, if disputed)

Question 8

The traditional rule was that a party could impeach his own witness only if the witness:

Answer 8

(i) was an adverse party

(ii) was hostile

(iii) was one required to be called by law

(iv) gave damaging surprise testimony

Question 9

A court will take judicial notice of:

Answer 9

(i) matters of common knowledge within the community (notorious facts)

(ii) matters easily verified by resorting to well-established, easily accessible sources (manifest facts)

Question 10

Prior statements by a witness that are consistent with the witness’s testimony at trial are sometimes admissible to ____.

Answer 10

rehabilitate a witness who has been impeached

Question 11

In a civil case involving sexual assault, evidence offered to prove the sexual disposition or alleged behavior of the victim will be admissible only if:

Answer 11

It is otherwise admissible under the Federal Rules and its probative value substantially outweighs the danger of harm to the victim and of unfair prejudice to any party.

Question 12

Evidence offered to prove the sexual disposition or behavior of the alleged victim may be admissible in criminal cases only in specific instances, such as where evidence of:

Answer 12

specific instances of sexual behavior by the victim is offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence, or when specific instances of sexual behavior between the victim and the accused are admissible to prove consent

Question 13

All of the following can qualify as a “statement” for purposes of the hearsay rule:

Answer 13

(a) oral declarations
(b) writings
(c) assertive conduct

Question 14

Impeachment of a witness with a prior conviction is likely admissible if it is a ____ from ____ years ago.

Answer 14

felony not involving dishonesty; seven

Question 15

Unlike felonies, only misdemeanors involving ____ may be used for impeachment purposes.

Answer 15

dishonesty or a false statement

Question 16

In most jurisdictions and under the Federal Rules, opinion testimony by lay witnesses is admissible when:

Answer 16

(i) rationally based on the perception of the witness
(ii) helpful to have a clear understanding of her testimony or to the determination of a fact in issue
(iii) not based on scientific, technical, or other specialized knowledge.

Question 17

Information in treatises can be read into evidence if the treatise is:

Answer 17

(i) relied upon by the expert or is called to his attention during cross-examination
(ii) established as reliable by the witness, another expert, or judicial notice

Question 18

The treatise itself is not admitted into evidence, but rather ____.

Answer 18

the relevant section is read in

Question 19

All statements made by the ____ in judicial proceedings are absolutely privileged.

Answer 19

judge, jurors, counsel, witnesses, or parties

Question 20

Before a writing or any secondary evidence of its content may be received in evidence, the writing must be ____.

Answer 20

authenticated by proof showing that the writing is what the proponent claims it is

Question 21

To qualify as an exception to the hearsay rule, a statement against interest must meet the following requirements:

Answer 21

(i) statement must have been against pecuniary, proprietary, or penal interest when made, such that a reasonable person in the declarant’s position would have made it only if she believed it to be true

(ii) declarant must have had personal knowledge of the facts

(iii) declarant must have been aware that the statement is against her interest and she must have had no motive to misrepresent when she made the statement

(iv) declarant must be unavailable as a witness

Question 22

If the burden of persuasion for an insanity defense is on the defendant, the standard of proof will usually be either by ____ or ____.

Answer 22

a preponderance of the evidence; by clear and convincing evidence

Question 23

If the crime did not involve dishonesty or false statement, the court has discretion to ____.

Answer 23

exclude the conviction under the general Rule 403 balancing test

(note that a stricter balancing test applies when the witness is the defendant in a criminal case)

Question 24

Under the Federal Rules, the dying declaration exception to the hearsay rule applies only in ____ and ____.

Answer 24

civil actions; homicide prosecutions

Question 25

The United States Supreme Court recognizes a federal privilege for communications between a ____.

Answer 25

licensed social worker and his client or a psychotherapist (psychiatrist or psychologist) and his client

Question 26

The best evidence rule does not apply to facts such as ____. These facts may be proved ____, although certificates evidencing these facts are in existence.

Answer 26

birth, marriage, and death; orally

Question 27

What is the difference, if any, between business routine and industrial custom?

Answer 27

Business routine is specific to the business and event in question, and is admissible only to show that a particular event occurred.

Industrial custom is admissible to prove the actions of other persons in the same industry.

Question 28

The best evidence rule applies:

Answer 28

(i) where the writing is a legally operative or dispositive instrument such as a contract, deed, will, or divorce decree

(ii) where the knowledge of a witness concerning a fact results from having read it in the document

Question 29

Dead Man Acts exist to ____.

Answer 29

protect estates from perjured claims

Question 30

The Confrontation Clause prohibits the admission of certain testimonial evidence against a criminal defendant. If the primary purpose of police interrogation is to ____, statements made in the course of the interrogation are nontestimonial.

Answer 30

enable the police to help in an ongoing emergency

Question 31

Testimony regarding the defendant’s attempt to bribe the witness is admissible as ____.

Answer 31

substantive evidence against the defendant

Question 32

Generally, a party may not bolster the credibility of her own witness unless the witness has already been impeached. The two exceptions to this rule are when the bolstering is relevant to show:

Answer 32

timely complaint; prior identification

Question 33

Under the Federal Rules, what is the limitation applied to the dying declaration exception to the hearsay rule?

Answer 33

limited to statements about the cause and circumstances surrounding what the declarant believes to be his impending death