CMR: Evidence

Question 1

What is evidence law?

Answer 1

A system of rules and standards that regulate the admission of proof (evidence) in a court proceeding

Question 2

What law governs evidence law?

Answer 2

The Federal Rules of Evidence

Question 3

When do the Federal Rules of Evidence apply in court proceedings?

Answer 3

In all civil and criminal federal proceedings

Question 4

What are the exceptions to the FRE’s applicability?

Answer 4

1. The court’s determination of a preliminary question of fact relating to admissibility
2. Any grand jury proceedings
3. Other miscellaneous proceedings, including those involving sentencing, extradition, bail, and probation

Question 5

When is evidence relevant?

Answer 5

If it has any tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence

Question 6

What are the elements of relevance?

Answer 6

1. Materiality
2. Probativeness

Question 7

What is materiality?

Answer 7

The proposition must be “of consequence” in the case

Question 8

What is probativeness?

Answer 8

The evidence has “any” tendency to make the proposition more or less likely in the case

Question 9

What is the standard balancing test under Rule 403?

Answer 9

A judge has broad discretion to exclude relevant evidence if its probative value is substantially outweighed by the danger of one or more of the following considerations:

1. Unfair prejudice
2. Confusing the issues
3. Misleading the jury
4. Undue delay
5. Waste of time
6. Cumulative evidence

Question 10

What is the general rule for inadmissibility of evidence?

Answer 10

If evidence involves some time, event, or person other than that involved in the present case

Question 11

What is the rule for admission of a plaintiff’s accident history?

Answer 11

Evidence that a person has previously filed similar tort claims or has been involved in prior accidents is generally inadmissible to show the invalidity of the present claim

Question 12

What are the exceptions to the rule for admission of a plaintiff’s accident history?

Answer 12

1. Evidence that a plaintiff has made a previous similar false claim
2. Evidence that a plaintiff previously injured the same part of their body

Question 13

What is the rule for admission of similar accidents or injuries caused by the same event or condition?

Answer 13

Other accidents involving the defendant are inadmissible because they merely show the defendant’s general character for carelessness

Question 14

What are the exceptions to the rule for admission of similar accidents or injuries caused by the same event or condition?

Answer 14

When evidence of prior accidents or injuries caused by the same event or condition occur under substantially similar circumstances, it is admissible to prove:

1. The existence of a dangerous condition
2. The dangerous condition was the cause of the present injury
3. The defendant had notice of the dangerous condition

Question 15

What is the rule for admission of the absence of similar accidents?

Answer 15

Evidence of the absence of complaints is admissible to show the defendant’s lack of knowledge of the dangerous condition

Question 16

What is the rule for admission of previous similar acts?

Answer 16

Similar conduct previously committed by a party may be admissible to prove the party’s present motive or intent in the current case

Question 17

What is the rule for admission of sales of similar property?

Answer 17

Evidence of sales of similar personal or real property around the same time period is admissible to prove the property’s value

Question 18

What is the exception to the rule for admission of sales of similar property?

Answer 18

Prices quoted in mere offers to purchase similar personal or real property are generally inadmissible

Question 19

When is it possible to rebut a claim of impossibility?

Answer 19

The requirement that prior occurrences be similar to the litigated act may be relaxed when used to rebut a claim of impossibility

Question 20

What is the rule for admission of habit and business routine evidence?

Answer 20

Evidence of a person’s habit or an organization’s business routine is admissible as circumstantial evidence that the person or organization acted in accordance with the habit or business routine on the occasion at issue in the case

Question 21

What is habit evidence?

Answer 21

A person’s regular response to a specific set of circumstances

Question 22

What are the two defining characteristics of habit evidence?

Answer 22

1. Frequency of conduct
2. Particularity of circumstances

Question 23

What is character evidence?

Answer 23

Evidence of a person’s general disposition or propensity with respect to general traits that is generally not admissible to prove how a person acted during the events of the case

Question 24

What is the rule for admission of industry custom?

Answer 24

Evidence as to how others in the same trade or industry have acted in the recent past may be offered as evidence of the appropriate standard of care in the trade or industry

Question 25

What is the rule for admission of liability insurance?

Answer 25

Evidence of a party’s insurance against liability is not admissible to show whether the party acted negligently

Question 26

What are the exceptions to the rule for admission of liability insurance?

Answer 26

1. To prove ownership or control
2. To impeach a witness
3. To show an admission of liability

Question 27

What is the rule for admission of subsequent remedial measures?

Answer 27

Evidence of repairs or other precautionary measures made following an injury is not admissible to prove:

1. Negligence
2. Culpable conduct
3. Defects in a product or its design
4. Need for a warning or an instruction

Question 28

What are the exceptions to the rule for admission or subsequent remedial measures?

Answer 28

1. To prove ownership or control
2. To rebut a claim that a precaution was not feasible
3. To prove that the opposing party has destroyed evidence

Question 29

What is the rule for admission of civil settlements and settlement negotiations?

Answer 29

Evidence of a compromise (settlement) or an offer to compromise a civil claim is not admissible in any case:

1. To prove or disprove the validity or amount of a disputed claim
2. To impeach a witness by prior inconsistent statement or contradiction

Question 30

What is the exception to the rule for admission of civil settlements or settlement negotiations?

Answer 30

Evidence of settlement is admissible to impeach a witness on the ground of bias

Question 31

When does the public policy exclusion for settlements and negotiations apply?

Answer 31

If there was a claim or some indication that a party was going to make a claim

Question 32

What are the elements of a disputed claim?

Answer 32

The claim must have been in dispute as to:

1. Liability
2. Amount

Question 33

What is the rule for admission of civil disputes with a government authority?

Answer 33

Conduct or statements made during compromise negotiations regarding a civil dispute with a governmental regulatory, investigative, or enforcement authority are not excluded when offered in a criminal case

Question 34

What is the rule for admissions of plea discussions?

Answer 34

In any criminal or civil case, evidence when offered against the defendant who made the plea or participated in the discussions is inadmissible in the following circumstances:

1. Offers to plead guilty
2. Withdrawn guilty pleas
3. Actual pleas of nolo contendere (no contest)
4. Statements of fact made during any of the above plea discussions

Question 35

What is the exception to the rule for admission of plea discussions?

Answer 35

An actual guilty plea (not withdrawn) is generally admissible in related litigation as a statement of an opposing party

Question 36

What is the rule for admission of payments of and offers to pay medical expenses?

Answer 36

Evidence that a party has paid or offered to pay an injured person’s medical, hospital, or similar expenses is inadmissible to prove liability for the injury

Question 37

What is the exception to the rule for admission of payments of and offers to pay medical expenses?

Answer 37

Admissions of fact accompanying such payments and offers are admissible

Question 38

When can character evidence be admissible as substantive evidence?

Answer 38

1. To prove a person’s character in the rare situation where their character is directly in issue in the case
2. To serve as circumstantial evidence of how a person probably acted during the events of the case

Question 39

When can character evidence be admissible as impeachment evidence?

Answer 39

To prove a witness’s bad character for truthfulness

Question 40

What are the methods to admit character evidence?

Answer 40

1. Evidence of the person’s specific acts
2. Opinion testimony of a witness who knows the person
3. Testimony as to the person’s general reputation in the community

Question 41

When is the defendant’s character admissible in a criminal case?

Answer 41

The defendant is permitted to introduce evidence of their own good character to prove their innocence, then the prosecution can rebut with evidence of the defendant’s bad character

Question 42

How can a defendant prove their own good character in a criminal case?

Answer 42

A character witness for the defendant may testify as to the defendant’s reputation for a pertinent trait and may give their personal opinion concerning that trait of the defendant

Question 43

What actions can be taken by the prosecution once the defendant has introduced character evidence?

Answer 43

1. Cross-examine the defendant’s character witness regarding the basis for their testimony by asking questions about specific acts of the defendant that show the defendant’s bad character for the pertinent trait
2. Call its own character witnesses to provide reputation or opinion testimony about the defendant’s bad character for the pertinent trait

Question 44

When is evidence of the victim’s character admissible in a criminal case?

Answer 44

1. The defendant may introduce reputation or opinion evidence of a bad character trait of the alleged crime victim when it is relevant to show the defendant’s innocence, such as for a claim of self-defense
2. The prosecution may introduce evidence of any kind regardless of whether the defendant has introduced character evidence of the victim in a homicide case in which the defendant pleads self-defense

Question 45

How can the prosecution rebut evidence of the victim’s bad character introduced by the defendant?

Answer 45

Reputation or opinion evidence of the victim’s good character or the defendant’s bad character for the pertinent trait

Question 46

What is the rule for admission of the victim’s character in cases involving alleged sexual misconduct?

Answer 46

Evidence offered to prove the sexual behavior or sexual disposition of the victim is generally inadmissible in any civil or criminal proceeding

Question 47

What are the exceptions to the rule for admission of the victim’s character in criminal cases involving alleged sexual misconduct?

Answer 47

1. Specific instances of a victim’s sexual behavior are admissible to prove that someone other than the defendant is the source of semen, injury, or other physical evidence
2. Specific instances of sexual behavior between the victim and the defendant are admissible by the prosecution for any reason and by the defendant to prove consent

Question 48

What are the exceptions to the rule for admission of the victim’s character in civil cases involving alleged sexual misconduct?

Answer 48

Evidence of the alleged victim’s sexual behavior is admissible if it is not excluded by any other rule and its probative value substantially outweighs the danger of harm to the victim and of unfair prejudice to any party

Question 49

What is the rule for admission of character evidence in civil cases?

Answer 49

Character evidence is generally inadmissible to prove conduct in conformity regardless if which party seeks to introduce it

Question 50

What is the exception to the rule for admission of character evidence in civil cases?

Answer 50

When proof of a person’s character, as a matter of substantive law, is an essential element of a claim or defense, such as in the following cases:

1. Defamation
2. Negligent hiring or entrustment
3. Child custody

Question 51

What is the rule for admission of other misconduct for non-character purposes?

Answer 51

Evidence of a person’s other crimes, wrongs, or acts is generally inadmissible if offered solely for the purpose of proving conduct in conformity or propensity

Question 52

What are the exceptions to the rule for admission of other misconduct for non-character purposes?

Answer 52

Evidence of a person’s other crimes, wrongs, or acts is admissible if relevant to some issue other than their character or propensity to commit the charged crime, including:

1. Motive
2. Intent
3. Absence of mistake or accident
4. Identity
5. Common plan or scheme

Question 53

What are the requirements for admissibility of other misconduct for non-character purposes?

Answer 53

There must be sufficient evidence to support a jury finding that the defendant committed the other misconduct subject to the standard balancing test under Rule 403

Question 54

What is the notice requirement in criminal cases for admissibility of other misconduct for non-character purposes?

Answer 54

The prosecutor must provide reasonable notice in writing with articulation of its non-propensity purpose to the defendant of this type of evidence that the prosecutor intends to offer at trial

Question 55

What is the exception to the rule for admissibility of the defendant’s similar misconduct in sex-crime cases?

Answer 55

Evidence of a defendant’s other acts of sexual assault or child molestation is admissible in any criminal or civil case where the defendant is accused of committing an act of sexual assault or child molestation, but it must be disclosed at least 15 days before trial to the defendant

Question 56

What is the rule for admission of writings and spoken statements?

Answer 56

A writing or any secondary evidence of its content will not be received in evidence unless the writing is authenticated with proof sufficient to support a jury finding of genuineness

Question 57

What are the methods of authentication?

Answer 57

Parties may admit the genuineness of a document by the pleadings, by stipulation, or by other evidence, such as:

1. Evidence that the party against whom it is offered has either admitted or acted upon its authenticity
2. Testimony of anyone who saw it executed or heard it acknowledged to prove authenticity
3. Evidence that the maker’s handwriting is genuine by the opinion of a familiar lay witness or by an expert or fact-finder’s opinion based on a comparison with the alleged writer’s handwriting
4. Evidence that it was written in response to a communication sent to the alleged author

Question 58

What are the elements of authentication of an ancient document?

Answer 58

Evidence that it is at least 20 years old when offered into evidence, it is in a condition that creates no suspicion as to authenticity, and it was found in a place where such writing would likely be located

Question 59

What are the elements of authentication of photographs and videos?

Answer 59

Photographs and videos are admissible only if identified by a witness as a portrayal of certain facts relevant to the issue and verified by the witness as a fair and accurate representation of those facts

Question 60

What is the exception to the authentication of photographs and videos?

Answer 60

If it was taken when no person who could authenticate the scene is present, the photograph or video may be admitted upon a showing that the camera was properly operating at the relevant time and that the photograph or video was downloaded or developed from film obtained from that camera

Question 61

What are the elements of authentication for x-ray pictures?

Answer 61

It must be shown that the process used is accurate, the machine was in working order and the operator was qualified to operate it

Question 62

What are the methods of authentication of oral statements?

Answer 62

Authentication as to the identity of the speaker is required when a statement is admissible only if said by a particular person

Question 63

How is voice identification authenticated?

Answer 63

A voice can be identified by the opinion of anyone who has heard the voice at any time, including after litigation has begun and for the sole purpose of testifying at the trial

Question 64

How are telephone conversations authenticated?

Answer 64

Statements made during a telephone conversation can be authenticated by any party to the call who testifies that:

1. They recognized the other party’s voice
2. The speaker had knowledge of certain facts that only a particular person would have based on the call
3. They called a particular person’s number and a voice answered as that person or that person’s residence
4. They called a business and talked with the person answering the phone about matters relevant to the business

Question 65

What are the types of self-authenticating documents?

Answer 65

Extrinsic evidence of authenticity is not required for the following writings:

1. Domestic public documents bearing a seal and similar official foreign public documents
2. Official publications
3. Certified copies of public records or private records on file in a public office
4. Newspapers and periodicals
5. Trade inscriptions and labels
6. Acknowledged (notarized) documents
7. Commercial paper and related documents
8. Business records, electronically generated records, and data copied from an electronic device, if the records are certified and the proponent gives the adverse party reasonable written notice and an opportunity for inspection

Question 66

What is the Best Evidence Rule?

Answer 66

Also known as the “original document rule,” it proves the content of a writing, recording, or photograph through the production of the original writing if the terms of the writing are material to the case

Question 67

When is secondary evidence admissible to prove the contents of a writing, recording, or photograph?

Answer 67

Only if the proponent provides a satisfactory excuse for the absence of the original writing

Question 68

When does the Best Evidence Rule apply?

Answer 68

1. Where the writing is a legally operative or dispositive instrument
2. Where the knowledge of a witness concerning a fact results from having read it in the writing

Question 69

When does the Best Evidence Rule not apply?

Answer 69

Where the witness has personal knowledge of the fact to be proved, even if the fact happens to also be recorded in a writing

Question 70

What is an original writing?

Answer 70

The writing itself or any counterpart that is intended by the person executing it to have the same effect as an original writing

Question 71

What is a duplicate writing?

Answer 71

An exact copy of an original writing made by mechanical means that is admissible to the same extent as an original writing unless:

1. The circumstances make it unfair to admit the duplicate writing
2. A genuine question is raised about the authenticity of the original writing

Question 72

What are the applicable excuses for not producing an original writing?

Answer 72

1. Loss or destruction of the original writing, unless it was done in bad faith
2. Failure to obtain the original writing by any available judicial process, usually in possession of a third party outside the court’s jurisdiction, despite reasonable efforts
3. Possession by an adversary who, after due notice, fails to produce the original writing

Question 73

What are the purposes of the applicable excuses to not producing an original writing?

Answer 73

A party may prove the contents of a writing by any type of secondary evidence

Question 74

What are the exceptions to the Best Evidence Rule?

Answer 74

1. Summaries of voluminous records
2. Certified public records
3. Collateral writings to the litigated issue
4. Testimony or written admission of the other party

Question 75

What is the jury’s role in determining preliminary questions of fact under the Best Evidence Rule?

Answer 75

1. Whether the original writing ever existed
2. Whether a writing produced at trial is an original writing
3. Whether the evidence offered correctly reflects the contents of the original writing

Question 76

What is real evidence?

Answer 76

Actual physical evidence addressed directly to the jury that can be direct, circumstantial, original, or demonstrative evidence

Question 77

What are the requirements for the admissibility of real evidence?

Answer 77

The object must be identified as what the proponent claims it to be, either by testimony of a witness that they recognize the object or by evidence that the object has been held in a substantially unbroken chain of possession, and shown to be in substantially the same condition at trial

Question 78

What is the standard of proof for real evidence?

Answer 78

The proof must be sufficient to support a jury finding of genuineness

Question 79

What are some particular types of real evidence?

Answer 79

1. Reproductions and explanatory real evidence
2. Maps, charts, and models authenticated by testimonial evidence
3. Demonstrations or experiments performed under conditions that are substantially similar to those attending the original event
4. Exhibition of injuries
5. Jury view of the scene of the charged crime

Question 80

How can a witness be established as competent?

Answer 80

While witnesses are generally presumed to be competent, they must pass tests of basic reliability to establish it with two limitations:

1. The witness has personal knowledge of the matter at issue in the trial
2. The witness must give an oath or affirmation to provide truthful testimony

Question 81

How have the Federal Rules of Evidence modified the common law regarding witness disqualifications?

Answer 81

1. By removing the witness disqualifications for lack of religious belief, conviction of a crime, and interest in the lawsuit
2. By making the competency of a child dependent on the capacity and intelligence of that particular child
3. By allowing an insane person to testify if they understand the obligation to speak truthfully and accurately

Question 82

How have the Federal Rules of Evidence modified the common law for judge and juror witnesses?

Answer 82

The presiding judge and jurors are incompetent to testify as witnesses at the current trial, and jurors are generally prohibited from testifying about what occurred during deliberations or about anything that may have affected their vote

Question 83

When may a juror testify as a competent witness?

Answer 83

1. Whether any extraneous prejudicial information was improperly brought to the jury’s attention
2. Whether any outside influence was improperly brought to bear on any juror
3. Whether there is a mistake on the verdict form
4. Whether any juror made a clear statement that they relied on racial stereotypes or animus to convict a criminal defendant

Question 84

What are “Dead Man Acts”?

Answer 84

In a civil case, an interested person (or their predecessors in interest) is incompetent to testify as to a personal transaction or communication with a deceased person, when such testimony is offered against the representative or successors in interest of that deceased person

Question 85

Who is an interested person?

Answer 85

A person who stands to gain or lose by the judgment or if the judgment may be used for or against them in a subsequent action

Question 86

What is the judge’s role in the questioning of witnesses?

Answer 86

By ultimately having discretion, they must exercise reasonable control over the examination of witnesses in order to aid the ascertainment of truth, to avoid wasting time, and to protect witnesses from harassment

Question 87

What is a leading question?

Answer 87

Questions that suggest the desired answer, which are generally allowed only on cross examination of witnesses

Question 88

What are the exceptions to leading questions?

Answer 88

Questions that are allowed on direct examination in the following circumstances:

1. To elicit preliminary or introductory matter
2. To help the witness respond because of loss of memory, immaturity, or physical or mental weakness
3. To question a hostile witness, an adverse party, or a witness affiliated with an adverse party

Question 89

What is the applicable scope of cross examination?

Answer 89

A party has a right to cross-examine any opposing witness, as long as its scope is frequently a matter of judicial discretion

Question 90

What are the limitations of cross examination?

Answer 90

1. The scope of direct examination, including all reasonable inferences that may be drawn from it
2. The matters that test the credibility of the witness

Question 91

What are improper questions or answers?

Answer 91

1. Questions that are misleading, compound, argumentative, conclusionary, cumulative, unduly harassing or embarrassing, call for a narrative or speculative answer, or assume facts not in evidence
2. Answers that lack foundation and are non-responsive to questions

Question 92

What is the rule for using documents to aid oral testimony?

Answer 92

A witness cannot read their testimony from a prepared memorandum, but must testify on the basis of their current recollection

Question 93

What is the rule for refreshing recollection?

Answer 93

A witness may use any writing or object for the purpose of refreshing their present recollection

Question 94

What are the safeguards against abusing the rule for refreshing recollection?

Answer 94

The adverse party is entitled to have the writing produced at trial, to cross-examine the witness about the writing, and to introduce portions of the writing relating to the witness’s testimony into evidence if the witness refreshed their memory while on the stand

Question 95

What are the safeguard against the failure to produce or deliver a writing used for refreshing recollection?

Answer 95

In a criminal case, if the prosecution fails to produce or deliver a writing, the judge must strike the witness’s testimony and potentially declare a mistrial

Question 96

What is the rule for recorded recollections?

Answer 96

When a witness states that they have insufficient recollection of an event to enable them to testify fully and accurately, even after refreshing their memory, the record itself may be read into evidence with a properly laid foundation

Question 97

How can a properly laid foundation be established for recorded recollections?

Answer 97

1. The witness has insufficient recollection to testify fully and accurately
2. The witness had personal knowledge of the facts in the record when it was made
3. The record was made by the witness or under their direction, or it was adopted by the witness
4. The record was made when the matter was fresh in the witness’s mind
5. The record accurately reflects the witness’s knowledge and the witness vouches for the accuracy of the record

Question 98

What are the requirements for opinion testimony by lay witnesses?

Answer 98

Opinions by lay witnesses are generally inadmissible, except when they are:

1. Rationally based on a witness’s perception
2. Helpful to a clear understanding of a witness’s testimony or to a determination of a fact in issue at the trial
3. Not based on scientific, technical, or other specialized knowledge

Question 99

What are the situations where opinions by lay witnesses are admissible?

Answer 99

1. The general appearance or condition of a person
2. The state of emotion of a person
3. A matter involving sense recognition
4. A voice or handwriting identification
5. The speed of a moving object
6. The value of a witness’s own services or property
7. the rational or irrational nature of another’s conduct
8. A person’s intoxication

Question 100

What are the situations where opinions by lay witnesses are not admissible?

Answer 100

1. Whether a witness or someone else acted as an agent
2. Whether a contract was made between two parties

Question 101

What are the requirements for opinion testimony by expert witnesses?

Answer 101

1. The subject matter must be one where scientific, technical, or other specialized knowledge would assist the trier of fact
2. The opinion must be based on sufficient facts or data
3. The opinion must be the product of reliable principles and methods
4. The expert must have reliably applied the principles and methods to the facts of the case

Question 102

What are the qualifications necessary for expert witnesses?

Answer 102

The witness must possess special knowledge, skill, experience, training, or education, and the expert’s opinion must be supported by a proper factual basis based on any of these sources of information:

1. Facts based on the expert’s own personal observation
2. Facts made known to the expert at trial
3. Facts not known personally, but supplied to the expert outside the courtroom and of a type reasonably relied upon by other experts

Question 103

What are the principal factors used by federal courts to determine the reliability of expert testimony?

Answer 103

1. Testing of principle or methodology
2. Rate of error
3. Acceptance by experts in the same discipline
4. Peer review and publication

Question 104

What are the limitations to using a learned treatise during expert testimony?

Answer 104

1. The treatise must be established as reliable authority by the testimony of the expert on the stand, the testimony of another expert, or judicial notice
2. The excerpt must be used in the context of expert testimony
3. The excerpt is read into evidence but cannot be an exhibit

Question 105

Can an expert witness render an ultimate opinion?

Answer 105

Generally, it is permissible as to the ultimate issue in the case, except in a criminal case in which the defendant’s mental state constitutes an element of the crime or defense

Question 106

How may a court appoint an expert witness?

Answer 106

With broad discretion, the court may appoint any expert who consents to act and is informed of their duties as well as receive reasonable compensation according to the court

Question 107

What are the obligations to the parties by a court-appointed expert witness?

Answer 107

1. The expert must advise the parties of any findings they make about the case
2. The parties may depose the expert, call the expert as a witness, or cross-examine the expert

Question 108

When should witnesses be excluded or sequestered during a trial?

Answer 108

Based on a party’s request or on their own volition, the trial judge must order witnesses excluded from the courtroom, but cannot exclude the following persons:

1. A party or designated officer or employee of a party
2. A person whose presence is essential to the presentation of a party’s claim or defense
3. A person statutorily authorized to be present

Question 109

When should witnesses be called or examined by the court?

Answer 109

The court may examine a party’s witness or call its own witness, but each party is entitled to cross-examine that witness and can object to the court’s witness at the that time or at the next available opportunity outside the presence of the jury

Question 110

What is impeachment?

Answer 110

Discrediting a witness

Question 111

What is the rule for bolstering a witness?

Answer 111

A party is generally not permitted to bolster or accredit the testimony of their witness until the witness has been impeached

Question 112

What are the exceptions to the rule for bolstering a witness?

Answer 112

In certain cases, a party may offer evidence that the witness made a timely complaint or a prior statement of identification (which is also substantive evidence)

Question 113

Who is allowed to impeach a witness?

Answer 113

A witness may be impeached by any party, including the party that called them

Question 114

What are the methods of impeachment?

Answer 114

1. Cross-examination
2. Extrinsic evidence

Question 115

What methods involve impeaching a witness with facts that are specific to the current case?

Answer 115

1. Prior inconsistent statements
2. Bias
3. Sensory deficiencies
4. Contradiction

Question 116

What methods involve impeaching a witness with their general bad character for truthfulness?

Answer 116

1. Opinion or reputation evidence
2. Prior convictions
3. Bad acts

Question 117

What is the rule for prior inconsistent statements?

Answer 117

A party may show that the witness has, on another occasion, made statements inconsistent with their present testimony

Question 118

When are prior inconsistent statements admissible as substantive evidence?

Answer 118

When a testifying witness’s prior inconsistent statement was made under oath at a prior proceeding

Question 119

What is the standard for using extrinsic evidence to prove prior inconsistent statements?

Answer 119

A proper foundation must be laid and the statement must be relevant to some issue in the case

Question 120

When can extrinsic evidence be introduced to prove prior inconsistent statements?

Answer 120

When the witness is given an opportunity to explain or deny the statement, and the adverse party is given an opportunity to examine the witness about the statement

Question 121

What are the exceptions to the standard for using extrinsic evidence to prove prior inconsistent statements?

Answer 121

1. If the statement is an opposing party’s statement
2. If the statement is used to impeach a hearsay declarant
3. If justice requires it

Question 122

What is the rule for bias or interest?

Answer 122

Evidence that a witness is biased or has an interest in the outcome of a case tends to show that the witness has a motive to lie

Question 123

What is the majority’s approach for using extrinsic evidence to show bias or interest?

Answer 123

Before a witness can be impeached, they must first be asked about the facts that show bias or interest on cross-examination

Question 124

What is the rule for sensory deficiencies?

Answer 124

A witness may be impeached by showing, either on cross-examination or by extrinsic evidence, that:

1. Their faculties of perception and recollection were so impaired as to make it doubtful that they could have perceived those facts
2. They had no knowledge of the facts to which they testified

Question 125

What is the rule for impeachment by contradiction?

Answer 125

The cross-examiner, while questioning the witness, can try to make the witness admit that they lied or were mistaken about some fact they testified to during direct examination

Question 126

When is extrinsic evidence allowed for impeachment by contradiction?

Answer 126

When the contradictory fact is not a collateral fact

Question 127

What is the rule for opinion or reputation evidence of untruthfulness?

Answer 127

A witness can be impeached with reputation or opinion evidence of their own bad character for truthfulness to suggest that they were not telling the truth while on the stand

Question 128

What is the rule for convictions?

Answer 128

A witness may be impeached by proof of a conviction for certain crimes

Question 129

What are the type of crimes allowed to impeach a witness?

Answer 129

1. Any crime, felony or misdemeanor, requiring an act of dishonesty or false statement with no discretion to exclude by the trial judge
2. A felony that does not involve dishonesty or false statement with discretion to exclude by the trial judge

Question 130

What is the balancing test to admit evidence of prior felonies that do not involve dishonesty or false statements?

Answer 130

1. When the witness is a criminal defendant, the court will exclude the conviction if the prosecution has not shown that its probative value outweighs its prejudicial effect
2. When the witness is for any other case, the court will exclude the conviction if it determines that its probative value is substantially outweighed by its prejudicial effect

Question 131

What is the general rule for remoteness for convictions?

Answer 131

If more than 10 years have elapsed since the date of conviction or the date of release from confinement (whichever is later), it is inadmissible

Question 132

What is the effect of a pardon on convictions?

Answer 132

A conviction cannot be used to impeach a witness if the conviction was subject to a pardon or equivalent procedure, and either:

1. The pardon was based on rehabilitation, and the witness has not been convicted of a subsequent felony
2. The pardon was based on innocence

Question 133

What is the rule for bad acts involving untruthfulness?

Answer 133

A witness may be interrogated upon cross-examination with respect to an act of misconduct if the act is probative of truthfulness, but no extrinsic evidence is admissible to prove it

Question 134

What is the rule for impeachment on a collateral matter?

Answer 134

It prohibits a party from proving the statement untrue by either extrinsic evidence or by a prior inconsistent statement

Question 135

How can a hearsay declarant be impeached at a trial?

Answer 135

By any of the impeachment methods, even without being given the opportunity to explain or deny a prior inconsistent statement

Question 136

What is the rule for rehabilitating an impeached witness?

Answer 136

1. The witness on redirect may explain or clarify facts brought out on cross-examination
2. The witness can use opinion or reputation evidence by other witnesses about their character for truthfulness
3. The witness can introduce their prior consistent statement

Question 137

What are the methods to introduce a prior consistent statement for an impeached witness?

Answer 137

1. If the testimony of the witness has been attacked by an express or implied charge that the witness is lying or exaggerating because of some motive, a previous consistent statement made by the witness before the onset of the alleged motive is admissible to rebut the evidence
2. If the testimony of the witness has been impeached on some other ground, a prior consistent statement made by the witness can be introduced if it has the tendency to rehabilitate the witness

Question 138

What is the effect of introducing a prior consistent statement?

Answer 138

It is also admissible as substantive evidence