Evidence

Question 1

Prosecutor asks defense witness if he’s ever been convicted of a crime. D’s counsel objects. What result?

Answer 1

Objection sustained because this is an improper form of impeachment. A witness can be impeached by criminal convictions but only for a felony or for any conviction involving dishonesty or false statement. Here, the prosecutor only asked witness whether he’d ever been convicted of a crime and didn’t limit the question to those particular convictions.

Question 2

P sues D for damaging her car. P calls witness who testifies that he heard D say to P “I can’t believe this. I’m sure my insurance company will reimburse you for my carelessness.” The court should rule that the testimony is:

Answer 2

Admissible as an exception to the hearsay rule. The statement is hearsay because it contains an out of court assertion by D as to his carelessness and it’s being offered for its truth. however, D’s statement qualifies as a party admission because it’s being offered against him at trial. While evidence of liability insurance generally is inadmissible, an admission of liability may be coupled with a reference to insurance coverage that cannot be severed, such as here.

Question 3

P sues D for damaging her car. P seeks to read into evidence a letter D received from his mechanic which states “I checked the breaks on your car and you were right - there’s a problem with the brakes. Bring your car in right away and don’t drive.” If D objects, what result?

Answer 3

D’s objection will be overruled. The letter is admissible to prove that D was aware of the problem with his brakes. The statement isn’t hearsay if it’s offered to prove D’s knowledge of the danger of operating car. MIMICK evidence.

Question 4

A civil judgment is generally ___________ in a subsequent civil proceeding.

Answer 4

Inadmissible.

Question 5

A & his passenger B are injured in a car accident with C. A sues C and a judgment is entered that C was negligent. If B sues A, can A introduce the judgment into evidence?

Answer 5

No - the judgment is being offered for its truth - to show that C was negligent. There is no hearsay exception for civil judgments. Therefore, it’s inadmissible hearsay.

Question 6

Is a judgment of acquittal in a criminal case admissible in a subsequent civil case?

Answer 6

No

Question 7

Under federal law, is a conviction in a criminal case admissible in a subsequent civil case?

Answer 7

Yes - but note in FL, it is NOT admissible

Question 8

Under FL law, is a criminal conviction admissible as substantive evidence?

Answer 8

No

Question 9

A & his passenger B are injured in a car accident with C. A is charged with reckless driving but is acquitted. If B sues A, can A introduce the judgment of acquittal into evidence?

Answer 9

No - neither under federal or fl rules can an acquittal be submitted as substantive evidence in a civil trial.

Question 10

D is on trial for murder. His character witness testifies that he has known D for 20 years, that D attends church services regularly, and that D isn’t the type of man to do this. What result if prosecution objects?

Answer 10

Sustained because D’s character can’t be proved by opinion testimony in Florida. Apparently, this is opinion testimony, not reputation testimony, so it’s inadmissible.

Question 11

D is charged with a crime. Wife visits him and officer puts them in a room he says will give them “privacy” and is intended for married couples. Unbeknowst to the couple, the room was bugged and recording their convesation. D moves to supress the recording. What result?

Answer 11

D’s motion to suppress will be granted because the privilege protecting confidential marital communications applies. Parties intended their communication to be confidential and were not in the known presence of a stranger.

Question 12

P sues D’s for injuries. P’s lawyer sends P to doctor to understand the nature of her injuries. D discovers that the doctor examined P and that the doctor won’t be called as a witness. D files a motion requesting copies of the doctor’s records concerning P. What result?

Answer 12

Denied. The attorney client privilege applies since lawyer sent P to doctor so that he could better understand nature of P’s injuries. Doctor’s findings are thus protected under attorney client privilege based on idea that doctor was acting as lawyer’s rep. Florida evidence code doesn’t recognize a separate physician-patient privilege.

Question 13

What is the standard to authenticate a writing?

Answer 13

Proof sufficient to support a jury finding of genuineness.

Question 14

How can a jury authenticate a letter?

Answer 14

by comparing the questioned writing with another writing PROVED, not just alleged, to be genuine (but remember - can’t be based on handwriting unless they were familiar with the person’s handwriting before trial or they are handwriting experts)

Question 15

Admissions made in connection with an offer to pay medical expenses are…

Answer 15

admissible

Question 16

B overserved A at a bar. A lawsuit ensues. At deposition, A says he was sober when he left the bar. At trial, A says he was drunk when he left the bar. Can B seek to enter A’s prior statement and if so for what purpose does it come in?

Answer 16

Yes - for both impeachment and substantive evidence that he was sober when he left hte bar. Prior inconsistent statements are usually only admissible to impeach the witness. However, where the statement was made under oath at a prior trial, hearing, proceeding or depo, it’s admissible nonhearsay.

Question 17

Statements made in connection with reports used by the Dept of Highway Safety are usually inadmissible EXCEPT

Answer 17

in CRIMINAL proceedings an officer may testify to any statement made to him by the person involved in the accident

Question 18

At trial, prosecution calls a witness. Halfway through the testimony, the witness can’t remember an important fact. Which of the following may be used by the prosecutor to refresh the witness’ recollection?
I. A baseball cap
II. A writing
III. A calendar

Answer 18

All three! A witness may use any writing or item for purpose of refreshing her present recollection. The important factor is that W admits she can’t remember and the production of the object aids her in memory of events.

Question 19

A & his passenger B are injured in a car accident with C. C is charged with reckless driving and enters a guilty plea. In a subsequent civil case where B sues A, can A submit evidence of C’s guilty plea?

Answer 19

No, the plea is hearsay that doesnt fall within an exception. A party admission is a statement made by a party and offered against that party. C isn’t a party in B’s aciton against A. Therefore, the guilty plea isn’t an admission and doesnt fall within any other exception.

Question 19

A & his passenger B are injured in a car accident with C. C is charged with reckless driving and enters a guilty plea. In a subsequent civil case where B sues A and C, can B submit evidence of C’s guilty plea?

Answer 19

Yes, as an admission of a party opponent.

Question 19

How to authenticate a phone call

Answer 19

any party to the call can testify that
(1) they recognized the other party’s voice
(2) the speaker had knowledge of certain facts that only a particular person would have
(3) they called a particular person’s number and a voice answered as that person or that person’s residence or
(4) they called a business and talked with the person answering the phone about matters relevant to the business

Question 19

The prosecution calls an officer to the stand who investigated the crime. When testifying, however, the officer can’t remember the details of the crime scene. He’s made notes and uses them to refresh his memory. What are the defendant’s rights with regard to the notes?

Answer 19

Whenever a witness has used a writing to refresh his memory on the stand, an adverse party is entitled to have the writing produced at trial, to inspect it, to cross examine the witness on it, and to introduce into evidence those portions that relate to the witness’ testimony

Question 20

The prosecution calls an officer to the stand who investigated the crime. When testifying, however, the officer can’t remember the details of the crime scene. He’s made notes and uses them to refresh his memory. The notes don’t refresh his memory, so the govt seeks to have them entered into evidence. What result if D objects?

Answer 20

D’s objection will be sustained because the notes can only be read into evidence. A record containing info that a witness once had knowledge of, but now has insufficient recollection of, that’s shown to have been made by the witness when the matter was fresh in his memory and reflects the knowledge correctly MAY be read to the jury under an exception to the hearsay rule. A party may read into evidence the memo when it’s admitted, but it’s not admissible as an exhibit unless offered by an adverse party. Thus, the notes can’t be admitted into evidence here.

Question 21

Videotape admissibility

Answer 21

(1) must be identified by a witness as a portrayal of facts relevant to the issue and
(2) verified by the witness as a fair and accurate representation of those facts

Note: not necessary to call the photographer - a witness familiar with the scene is sufficient

Question 22

Unattended camera admissibility

Answer 22

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

Question 23

P is suing Dan and Walmart. To prove Walmart’s liability, P offers the testimony of W, who heard Dan right after the accident say “I didn’t see that display and didn’t think it would come down on you when I touched it.” Walmart objects. What result?

Answer 23

The objection should be sustained if Dan isn’t an employee of walmart. Admissions of a party (dan) aren’t admissible against a co-defendant (Walmart) merely bc they are joined in an action. Statements by an agent or employee concerning any matter within the scope of his agency/employment, made during the existence of the employment relationship, are admissible as a vicarious admission.

Question 24

P wants to prove that D is an agent of co-D corporation. Can she ask “are you authorized as an agent of co-D?”

Answer 24

No - when agency or authorization is at issue, the witness generally can’t state a conclusion as ot his authorization. Rather, he must be asked by whom he was employed and the nature, terms, and surrounding circumstances of his employment.

Question 25

D is on trial. Govt calls his wife as witness. Wife testifies that (1) D wasn’t with her the night of hte crime and (2) D told her he’d been out drinking with his friends that night. D’s counsel objects to both statements. What result?

Answer 25

The court should allow the first statement as she’s testifying to a fact not a communication. But the second statement is a privileged confidential marital comunication (the only marital privilege in FL) and should be found inadmissible.

Question 26

In a civil suit between P and D, P seeks to introduce evidence that prior to this civil suit, D had pleaded guilty to reckless driving involving this same accident. Over a timely objection the court should rule that the guilty plea is:

Answer 26

Admissible as an admission. A guilty plea is admissible in subsequent litigation when offered by the adverse party. The plea itself is an admission by a party-opponent. This isn’t impeachment evidence, it’s substantive, so it doesn’t matter that it’s neither a felony nor a misd involving dishonesty.

Question 27

P sues D for dropping a crane on D at work. P tries to introduce evidence that the day after the accident, D entered a drug rehab program. The trial court would rule that the evidnece is..

Answer 27

inadmissible because this is a subsequent remedial measure. Public policy excludes such corrective actions.

Question 28

Under which of the circumstances would the best evidence rule be inapplicable?
I. Hank seeks to testify orally that he paid $200 for nails which he never receives. He doesn’t produce a written receipt.
II. Bernie, on trial for murder, writes a written confession. Instead of introducing the confession, the govt tries to prove the content of it by introducing the oral testimony of a police officer who heard the confession.
III. Gilbert seeks to testify orally he’s been divorced from his ex wife for 3 years and doesn’t produce a written divorce decree.
IV. Barney seeks to testify orally that he’s been married to Glenda for 6 months and doesn’t produce a written marriage license or certificate.

Answer 28

The best evidence rule doesn’t apply to I, II, and IV. The best evidence rule provides that in proving the terms of a writing, where the terms are material, the original writing must be produced. However, if the fact to be proved has an existence independent of nay writing, the best evidence rule doesn’t apply. Item III requires the BER because a divorce is effective only by a judicial decree and the BER requires the fact of the divorce be proved by decree.

Question 29

D is charged with burgarly. He calls his wife at trial to testify that D was known throughout the area as an honest person. An objection by the prosecution should be…

Answer 29

Overruled. Apparently this is reputation evidence, not opinion evidence, so this comes in. Opinion evidence would not.

Question 30

P is injured when a stack of canned goods fell on her at D’s market. D tries to offer testimony to show the store’s procedures as to displaying and piling canned goods. Result?

Answer 30

Admissible if it is routine practice of the market.

Question 31

Can you ask leading questions on direct exam of an opposing party?

Answer 31

yes

Question 32

Cars driven by P & D collide at an intersection. Before the filing of any lawsuit, A tells B he ran the light and offers to settle the claim for $500. B refuses to accept it. A sues B for his injuries and B countersues. At trial, B’s attorney calls B to the stand and asks if A has ever made any offers to settle the dispute. If A objects ,what result?

Answer 32

Sustain the objection because offers to compromise a claim are inadmissible to prove liability (unclear here why this is the right answer because usually there must be a dispute already, but FBBE uses this question so memorize it)

Question 33

P is injured in car accident at 9AM, after sunrise. P sues D for failure to have his headlights on. D, in support of his claim that he didn’t need to have his headlights on, asks the judge to take judicial notice of a Florida Statute that only requires use of headlights between sunrise and sunset. D didn’t notify P before trial. What result?

Answer 33

The court MUST take judicial notice because it is a public statutory law of Florida.

Question 34

Is a newspaper self authenticating?

Answer 34

Yes

Question 35

During D’s murder trial, the state called W to testify. W testified that D was not the man she saw shoot the victim. During the investigation of the murder, W told prosecutor that she saw D shoot the victim. This prior statement was made under oath and was recorded by a court reporter, but D’s attorney was not present.
If the State seeks to introduce W’s prior inconsistent statement for the sole purpose of impeaching W, should the court allow the prior statement to be admitted into evidence?

(A) Yes, because any party can attack the credibility of a witness by introducing a prior inconsistent statement.
(B) Yes, because a prior inconsistent statement given under oath can be used by any party for any purpose.

Answer 35

Yes, because any party can attack the credibility of a witness by introducing a prior inconsistent statement.

Question 36

. During an investigation, Reynolds gave an unsworn statement to a State Attorney’s investigator that implicated himself and Sorensen in a criminal scheme to defraud investors. Shortly after making the statement, Reynolds was killed.

In a subsequent trial of Sorenson for criminal fraud, the prosecution called the investigator and asked her to recount what Reynolds said during their interview.The defense objected to the testimony on hearsay grounds. The testimony is:

(A) admissible as an admission.
(B) admissible as a statement against interest.
(C) inadmissible because the statement was not made in furtherance of the conspiracy.
(D) inadmissible because the investigator’s testimony about Reynolds’ out-of-court statement is hearsay within hearsay.

Answer 36

(B) admissible as a statement against interest.