Evidence Flashcards
A plaintiff brought an action in federal court based on diversity jurisdiction to rescind a contract to transfer real property to the defendant. The plaintiff contended that the defendant’s conduct with regard to the contract constituted duress. Upon the death of the plaintiff, the personal representative of the plaintiff’s estate continued the action. The applicable state law, which otherwise follows the Federal Rules of Evidence, contains a Dead Man’s statute, which reads: In any civil proceeding, where any party to a contract in action is dead and his right thereto has passed to a party who represents his interest in the subject in controversy, any surviving party to the contract shall not be a competent witness to any matter occurring before the death of said party. As part of the case-in-chief, the personal representative introduced an email written by the defendant and sent to the decedent that was relevant to the issue of duress. Immediately thereafter, the defendant, noting that the email was written in response to a letter written by the decedent to the defendant, sought to introduce that letter into evidence. The personal representative objected. Which of the following is the strongest ground upon which the personal representative can base this objection?
Correct Answer: Fairness does not require introduction of the letter during the presentation of the personal representative’s case-in-chief.
Answer choice D is correct.
The rule of completeness (i.e., Federal Rule 106) permits a party to compel the introduction of a statement that in fairness should be considered at the same time as an admitted writing or recorded statement. Consequently, if fairness does not require the immediate introduction of the prior letter, the defendant will have to wait until the defendant can present evidence in order to introduce this letter. Answer choice A is incorrect. While the Dead Man’s Statute prevents a surviving party to a contract from serving as a witness regarding any matter occurring before the death of another party to the contract, the defendant is not seeking to testify regarding that contract, but instead is seeking to introduce into evidence a written statement made by the decedent. Answer choice B is incorrect because, since the letter was written by the decedent whose estate is the subject of the litigation, the letter would be non-hearsay as a statement by a party-opponent. Answer choice C is incorrect because, while the rule of completeness generally is applied to the introduction of an omitted portion of an admitted writing or recorded statement, this rule can also apply to separate related writing or recorded statement.
A plaintiff brought an action against a defendant for damages to her vehicle resulting from a car accident. To prove her damages, the plaintiff introduced a dated and authenticated invoice from the mechanic who repaired her car after the accident. After the invoice was admitted into evidence, the woman sought to enter into evidence a printout of a digital photograph of her vehicle at the scene of the accident. If admitted, she plans to testify that she called her brother immediately after the accident so he could meet her at the scene and take photographs. She will also testify that her brother took this photograph the day of the accident, and that the photograph fairly and accurately represents the condition of her vehicle and its position in the intersection after colliding with the defendant’s vehicle. Should the court rule that the photograph is admissible?
Correct Answer: Yes, because the plaintiff has personal knowledge of the accuracy of the photograph.
Answer choice D is correct. All tangible evidence must be authenticated. To authenticate an item, the proponent must produce sufficient evidence to support a finding that the thing is what its proponent claims it is. When reproductions (e.g., photographs, diagrams, maps, movies) are introduced into evidence, they may be authenticated by the testimony of a witness with personal knowledge that the object accurately depicts what its proponent claims it does. Here, because the plaintiff was at the scene of the accident, she has personal knowledge to support her testimony that the photograph fairly and accurately represents the condition of the vehicle and its position in the intersection after colliding with the defendant’s vehicle. Therefore, the photograph will be properly authenticated by her testimony, and is admissible. Answer choice A is incorrect. Although the plaintiff has already admitted the invoice as evidence of her damages, the photograph of her vehicle at the scene of the accident could include additional evidence not available on the invoice that may be relevant to her claim for damages. For example, she could make an argument that infers that the defendant is at fault based on the position of the vehicle at the scene. Answer choice B is incorrect. When a reproduction is introduced into evidence, it is generally not necessary to call the person who created the reproduction to authenticate it. Here, the plaintiff has personal knowledge that the photograph fairly and accurately represents the condition of the vehicle and its position in the intersection after colliding with the defendant’s vehicle. Therefore, testimony by the brother, who took the photograph, is not required for the photograph to be admissible. Answer choice C is incorrect because digital photographs are not self-authenticating.
A defendant was charged with the sale of narcotics. At his trial, the prosecution planned on calling as witnesses the police officer who investigated the crime, an eyewitness to the crime, a desk officer to testify regarding chain of custody, and a former co-defendant who had reached a plea agreement with the prosecution. The defendant demanded, as a matter of right, that each of these individuals be excluded from the courtroom to prevent them from hearing the testimony of the other witnesses. The prosecution objected to removing any of these individuals from the courtroom. Which of the following individuals should the judge order be removed from the courtroom?
Correct Answer: The eyewitness, the former co-defendant, and the desk officer, but not the investigating officer.
Answer choice C is correct.
At a party’s request, the court must order the exclusion of a witness from the courtroom so that the party cannot hear the testimony of the other witnesses, unless an exception applies. There is an exception for an officer or employee of a party who is not a natural person, and this exception has frequently been applied to the police officer in charge of investigating a criminal case.
Fact Witnesss are out generally.
Exceptions: Victims may stay in by state law, Parties may stay in generally, and prosecution’s lead investigator may stay in generally.
Answer choices A and B are incorrect because there is no exception for an eyewitness, a former co-defendant, or an officer who testifies as to chain of custody. Accordingly, these individuals must be removed from the courtroom if so requested by the defendant. Answer choice D is incorrect because it would wrongfully exclude the investigating officer, who would not be excluded as a matter of course like the other three parties would be.
A high school teacher played on a hockey team in a local recreational league. During a league game, the teacher was involved in a fight with another hockey player. That player sued the teacher in a battery action to recover for injuries inflicted during the fight. The teacher contended that he had acted in self-defense. The teacher called his principal to testify that the teacher had a reputation within the school community for peacefulness. The plaintiff, who had not introduced evidence of the teacher’s character for violence, objected to this testimony. Should the court admit this testimony?
Correct Answer: No, because such evidence is not admissible in a civil action.
Answer choice D is correct.
Evidence of a defendant’s character is inadmissible in a civil case to prove that the defendant acted in conformity with that character trait unless the defendant’s character is an essential element of a claim or defense.
Since the defendant’s character for peacefulness is not an element of either battery or self-defense, the principal’s testimony is not admissible.
Answer choice A is incorrect because, although a defendant is permitted to introduce evidence of a pertinent good character trait in a criminal case, such evidence is not admissible in a civil case. Answer choice B is incorrect because, although reputation testimony is an acceptable form of presenting character evidence when such evidence is permitted, character evidence is generally not admissible in a civil action. Answer choice C is incorrect because it is not relevant that the plaintiff has not introduced such evidence. Such evidence is not permitted in a civil case, whether introduced by the plaintiff or the defendant.
An expert witness was called by the defendant to testify in a murder trial. The expert was to testify that the defendant was not responsible for his actions due to a specific mental defect. On cross-examination, the prosecutor brought to the expert witness’s attention an authoritative book on psychological conditions, judicially noted to be a reliable authority in the field. The book described the symptoms of the mental defect at issue differently than the expert witness had described them, and the prosecutor read the book’s description into evidence. The prosecutor wanted the jury to be able to consider the book’s description as substantive evidence, but the defendant objected that the description could be used for impeachment purposes only, and not as substantive evidence. The prosecutor further wanted to introduce the book itself into evidence; the defendant objected to this as well. Should the court allow the jury to consider the description in the book as substantive evidence, and should the book itself be introduced as evidence?
Correct Answer: The description should be considered as substantive evidence, and the book should not be introduced into evidence.
Answer choice B is correct.
Evidence such as this book, while technically hearsay, is admissible under the learned treatise exception to the hearsay rule.
A statement contained in published treatises or periodicals on a subject of history, medicine, or other science or art is admissible if (i) the treatise is established as a reliable authority by the testimony of a witness, expert, or by judicial notice, and (ii) an expert relied on it during direct examination or it was brought to the expert’s attention on cross-examination.
If these requirements are met, the statement contained in the treatise may be read into evidence, and may be used as substantive evidence and for impeachment purposes. The treatise itself, however, is not admitted into evidence.
Answer choice A is incorrect because it states that the description may be used for impeachment purposes only. Answer choices C and D are incorrect because they both indicate that the treatise may be introduced into evidence. Answer choice D is also incorrect because it states that the description may be used for impeachment purposes only.
A mother, upon learning that her son had been assaulted by his middle school teacher, filed a suit on behalf of her son against the school district, claiming that it had negligently hired the teacher. At trial, the mother sought to introduce the testimony of one of the teacher’s former students from when the teacher had worked in a different school district. The witness would testify that the teacher had beaten her. The mother had further evidence that this incident had been included in the teacher’s personnel file. Is the former student’s testimony likely to be admitted?
Answer choice C is correct.
Evidence of a person’s character (or character trait) generally is inadmissible to prove that the person acted in accordance with that character (or character trait) on a particular occasion.
Character evidence is admissible if it is an essential element of a claim, such as in the case of negligent hiring or entrustment, child custody.
Rule: In a civil case where character is at issue in the claim or defense reputation, opinion evidence and specific prior bad acts are admissible.
In this case, the mother asserted a negligent hiring claim against the school district, and thus, the teacher’s character as violent toward his students and the school district’s knowledge of that character is an essential element of the claim. Answer choice A is incorrect because, although character evidence is not generally admissible, it may be admitted when character is an essential element of a claim. Answer choice B is incorrect because, when character evidence is admissible in a civil case, it may be proven by specific instances of conduct. Answer choice D is incorrect because character evidence is not generally admissible in a civil case. It is admissible in this case, however, because character is an essential element of the claim.
Following an accident in which a pedestrian was struck and killed by a bus, the pedestrian’s children filed a wrongful death action against the bus company. In the complaint, the plaintiffs asserted that the bus company was vicariously liable for the bus driver’s negligence, and also liable for its own negligence in hiring the bus driver. In support of both theories of liability, the plaintiffs moved to admit into evidence the bus driver’s driving record prior to the driver’s employment with the bus company. The driving record included several misdemeanor moving violations and prior suspension of the bus driver’s license. The defendant objected, arguing that the evidence constituted improper character evidence. How should the court rule?
You Selected: The court may admit the driving record, but only to support the negligent hiring theory.
Answer choice C is correct.
In a civil case, evidence of a person’s character trait generally is inadmissible to prove that the person acted in accordance with that character trait on a particular occasion. Character evidence is admissible, however, when character is an essential element of a claim or defense, rather than a means of proving a person’s conduct.
Here, the bus driver’s driving record cannot be used to show that the bus driver had a propensity to drive negligently and did so on this occasion, but it can be admitted for the purpose of showing that the bus company knew or should have known about the driving history of its employee and therefore acted negligently in hiring the bus driver.
Answer choice A is incorrect because the court may not properly admit the driving record to support the vicarious liability theory, as it would constitute improper character evidence. Answer choice B is incorrect because character evidence may be used when character is an essential element of a claim or defense, such as in negligent hiring actions, but may not be used to prove character. Answer choice D is incorrect because, although character evidence may not be used to prove character in most civil actions, it may be used in cases where character is an essential element of the claim.
Civil Case Character Evidence Limits
Generally, not coming in to prove propensity.
Character must be at issue in the cause of action for character evidence to come in for a civil case. This helps prove an element of the case not propensity.
These causes of action allow character evidence to come in Negligent Hiring, Negligent Entrustment, Defamation, Fraud, Child Custody
Character is at issue in these civil causes of action so then the character evidence comes in.
The evidence comes in as reputation, opinion, and specific bad acts.
But it must be supporting only one of the appropriate cause of action.
A defendant on trial for forging checks took the stand in his own defense. On direct examination, the defendant denied having forged any checks; he stated that before he graduated from college the year before, he worked in his university’s academic records office, indicating that he was “a trustworthy person.” On cross-examination, the prosecutor asked the defendant if he had falsified records while working in the academic records office. The defendant denied that he had done so. The prosecutor then wanted to call to the stand his former supervisor from the university to testify that she had to investigate the defendant after allegations of misconduct, and that when questioned, he had admitted to her that he had falsified records. The defendant was removed from his position, but no formal charges had been brought against him. Should the prosecutor be allowed to call the defendant’s former supervisor to the stand to testify as to the falsified records?
Answer choice D is correct.
Correct Answer: No, because the testimony would be extrinsic.
The former supervisor may not testify about the falsified records because it would be impeachment by extrinsic evidence of a specific instance of conduct.
A specific instance of conduct, if used to impeach the credibility of a testifying witness, may not be proved by the introduction of extrinsic evidence. The adverse party may cross-examine the witness about the conduct, but must take his answer as he gives it.
Since the evidence about the falsification of records is only admissible, if at all, to impeach the witness, extrinsic evidence (such as the supervisor’s testimony) may not be used to refute the defendant’s denial.
Answer choice A is incorrect because when a person is charged with one crime, extrinsic evidence of a specific instance of conduct is inadmissible to establish that the defendant had a propensity to commit that crime. Since the facts do not indicate that the prior bad act is being used as evidence for something circumstantial and relevant, such as motive, common plan or scheme, or identity, the supervisor’s testimony is not admissible as substantive evidence. Answer choice B is incorrect because, for the reasons listed above, extrinsic evidence is not admissible to prove a witness’s specific instance of conduct. Answer choice C is incorrect because the alleged hearsay statement is a statement by an opposing party, and therefore nonhearsay; further, it would constitute a prior inconsistent statement.
Use Immunity
A witness may be compelled to provide incriminating testimony if the government grants him immunity from prosecution. “Use” immunity prohibits only the use of the compelled testimony against the witness. If the government does prosecute the witness in such a case, the government has the burden to show that the compelled testimony did not provide an investigatory lead that was helpful to the prosecution. Meaning the gov’t can still prosecute they just need other evidence to prove that they are doing so under a new method of getting at the D rather than with their testimony.
In a pre-trial hearing, a judge determined that a defendant’s confession was given voluntarily to a police detective after the detective had given Miranda warnings to the defendant. At this hearing, the defendant testified. At trial, the defense did not contest the defendant’s receipt of Miranda warnings, but sought to question the police detective about the manner in which the defendant was interrogated after receiving the warnings in order to call into question whether the confession was voluntary. The defense does not plan to call the defendant to the witness stand. Should the court permit this line of questioning?
You Selected: Yes, because a party may introduce evidence that is relevant to the weight and credibility of other evidence.
Answer choice C is correct.
Even though a judge has decided that evidence, such as a confession, is admissible, a party may nevertheless introduce other evidence that is relevant to the weight and credibility of the admitted evidence.
Here, the defense seeks to discredit the confession by introducing evidence that it was not given voluntarily.
Answer choice A is incorrect because, as noted, a judicial determination as to admissibility of evidence does not foreclose a party from presenting other evidence that challenges the credibility of that evidence. Answer choice B is incorrect because, even though the defense did not contest the defendant’s receipt of Miranda warnings, a defendant may challenge a confession given after those warnings as being involuntary. Answer choice D is incorrect because, although a defendant may testify at a hearing on a preliminary question, such as the admissibility of a confession, without being required to testify at trial, this principle is irrelevant to the issue of whether a defendant may present evidence at trial that questions the credibility of admitted evidence.
