evidence

Question 1

The best evidence rule—also known as the original document rule—generally requires that

Answer 1

an original recording, writing, or photograph(referred to as “document”) be produced to prove its contents.

Question 2

The Best Evidence Rule applies when

Answer 2

a witness is testifying based on facts learned from the document—as opposed to personal knowledge.

Question 3

Is real or physical evidence (e.g., a three-dimensional model) subject to the best evidence rule?

Answer 3

NO

Question 4

One exception to the best evidence rule allows other evidence of a document’s content (e.g., testimony) to be introduced if

Answer 4

the proponent establishes that all of the originals were lost or destroyed through no bad faith of the proponent.

Question 5

Does the prosecution have to provide a written summary of testimony from an expert witness the prosecution intends to offer at trial?

Answer 5

YES

Question 6

*Duplicates are admissible unless

Answer 6

original’s authenticity is questioned or it would be unfair to admit them.

Question 7

posttrial juror testimony is admissible if it addresses:

Answer 7

1) extraneous prejudicial information brought to the jury’s attention
2) an outside influence improperly brought to bear on a juror or
3) a mistake made in entering the verdict onto the verdict form.

Question 8

hearsay exception for recorded recollections allows a record to be read into evidence if it:

Answer 8

1) concerns a matter that a witness once knew but cannot recall at trial
2) was made or adopted by the witness when the matter was fresh in his/her mind and
3) accurately reflects the witness’s personal knowledge at the time it was made.

Question 9

recorded recollection may be received as an exhibit only if

Answer 9

it is offered by an adverse party

Question 10

Intrinsic evidence is always admissible for

Answer 10

impeachment purposes.

Question 11

extrinsic evidence for impeachment is admissible only if

Answer 11

1) the impeached witness has the opportunity to explain or deny; and
2) adverse party can examine the witness about the inconsistent statement
3) catchall exception- “if justice so requires”

Question 12

the woman’s statement to her roommate is not a present sense impression because it was made hours after the woman heard the defendant’s statement—not

Answer 12

while or immediately after she heard it

Question 13

The law encourages plea-bargaining, so a defendant’s statements during plea negotiations are generally

Answer 13

not admissible against the defendant.

Question 14

defendant may waive protection against admissibility of statements during plea negotiations—just like any other privilege—if the waiver is made

Answer 14

knowingly and voluntarily

Question 15

When a hearsay declarant’s statement is admitted into evidence, the declarant may be impeached in the same manner as a testifying witness—e.g., by showing that the declarant’s statement was

Answer 15

motivated by bias or self-interest.

Question 16

Federal Rule of Evidence (FRE) 608 provides the framework to attack or support a witness’s character for truthfulness through:

Answer 16

1) reputation or opinion testimony about the witness’s character for truthfulness or
2) specific instances of conduct (SICs)—i.e., convictions for felonies or crimes of dishonesty OR prior bad acts that relate to the witness’s character for truthfulness

Question 17

A SIC that involves a conviction for a felony or crime of dishonesty can be introduced

Answer 17

intrinsically (i.e., through the witness’s testimony) or extrinsically (i.e., from other sources).

Question 18

a SIC involving a mere bad act may only be introduced

Answer 18

intrinsically.

Question 19

when a witness denies a SIC involving a bad act on cross-examination

Answer 19

the examiner is stuck with the witness’s answer.

Question 20

A prior inconsistent statement is admissible nonhearsay if

Answer 20

(1) it was given under penalty of perjury at a trial, hearing, deposition, or other proceeding and
(2) the declarant testifies and is subject to cross-examination.

Question 21

a prior inconsistent statement can also be introduced extrinsically for impeachment purposes if

Answer 21

the witness has the opportunity to explain or deny, and the adverse party can examine the witness about, the statement.

Question 22

Once a witness has used a writing to refresh his/her recollection, the adverse party is entitled to

Answer 22

(1) have the writing produced for inspection,
(2) cross-examine the witness about the writing, and
(3) introduce into evidence any portion of the writing that relates to the witness’s testimony.

Question 23

Statements made by and offered against a party-opponent are nonhearsay and therefore

Answer 23

admissible substantively unless barred by another evidentiary rule.

Question 24

Under FRE 411, evidence that a party was (or was not) covered by liability insurance is

Answer 24

not admissible as substantive proof of negligence or wrongdoing.

Question 25

Authenticating an item of evidence that is a physical representation of something that could not otherwise be seen requires proof that

Answer 25

(1) the process for creating the evidence was accurate,
(2) the machine that produced the evidence was working properly, and
(3) the operator of the machine was qualified to operate it.

Question 26

The best evidence rule generally requires that an original of a recording, writing, or photograph be

Answer 26

produced to prove its contents

Question 27

a duplicate is admissible to the same extent as the original unless

Answer 27

(1) a genuine question is raised about the original’s authenticity or
(2) the circumstances make it unfair to admit the duplicate.

Question 28

Public policy encourages the ____________ of disputes.

Answer 28

settlement of disputes

Question 29

FRE 408 generally bars the admission of evidence of compromise offers (or acceptance of such offers), as well as conduct or statements made during compromise negotiations, when that evidence is offered to:

Answer 29

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

Question 30

A party does not have be a party to a compromise agreement/offer/negotiation to assert 408 objection, bc 408 applies even when

Answer 30

the party seeking to introduce such evidence was not a party to the agreement.

Question 31

Evidence is relevant if it is

Answer 31

both probative and material

Question 32

Relevant evidence may be excluded under Rule 403 if

Answer 32

its probative value is substantially outweighed by the danger of unfair prejudice.

Question 33

Character evidence, which is generalized information about a person’s behavior, including evidence that the defendant is a criminal, is

Answer 33

generally inadmissible

Question 34

prosecution is not permitted to introduce evidence of a defendant’s bad character to prove

Answer 34

that the defendant has a propensity to commit crimes and therefore is likely to have committed the crime in question.

Question 35

a defendant’s bad acts are admissible for another purpose, such as proving

Answer 35

motive, intent, absence of mistake, identity, or common plan (often referred to as “MIMIC” evidence).

Question 36

Virginia does permit the introduction of character evidence, for substantive and impeachment purposes, in the form of

Answer 36

reputation testimony

Question 37

Virginia does not permit the introduction of character evidence in the form of opinion testimony for

Answer 37

either substantive or impeachment purposes.

Question 38

While a spouse cannot be compelled to testify against his or her spouse in a criminal case, the spouse can

Answer 38

choose to testify

Question 39

person may refuse to disclose, and may prevent anyone else from disclosing, any

Answer 39

confidential communication between himself and his spouse during their marriage, regardless of whether he is married to that spouse at the time he objects to disclosure.

Question 40

when impeaching a witness who is a criminal defendant or a party in a civil case, Virginia generally allows only the fact of a felony conviction or a misdemeanor involving moral turpitude and the number of convictions, not

Answer 40

the name and nature of the crime

Question 41

a witness may be impeached by a felony conviction, even though the crime of which the witness was convicted does not

Answer 41

relate to the defendant’s character for truthfulness

Question 42

unlike the federal rules, the Virginia rules do not impose additional requirements on the use of a conviction for which more than 10 years have elapsed since

Answer 42

the conviction or release from confinement, whichever is later.

Question 43

Virginia rules do not impose a notice requirement for the use of

Answer 43

criminal convictions as impeachment evidence

Question 44

Because a witness may be influenced by his relationship to a party (e.g., employment), his interest in testifying (e.g., avoidance of prosecution), or his interest in the outcome of the case (e.g., receipt of an inheritance), a witness’s bias or interest is

Answer 44

always relevant to the credibility of his testimony, and consequently, a witness may be impeached on that ground.

Question 45

Evidence that a person was or was not insured against liability is

Answer 45

not admissible to prove whether the person acted negligently or otherwise wrongfully

Question 46

Evidence that a person was or was not insured against liability may be admissible for another purpose such as

Answer 46

to prove agency, ownership, or control, or to prove a witness’s bias or prejudice.

Question 47

not all relevant and probative evidence is

Answer 47

admissible

Question 48

Virginia does not permit the presentation of otherwise admissible character evidence in the form of

Answer 48

opinion testimony

Question 49

Although the prosecution is generally not permitted to introduce evidence of a defendant’s bad character to prove that the defendant has a propensity to commit crimes and therefore is likely to have committed the crime in question, the prosecution can offer such evidence when

Answer 49

the defense “opens the door” by introducing evidence of the victim’s bad character; but not in opinion testimony form

Question 50

Under the Virginia rules of evidence, unlike the federal rules of evidence, a prior inconsistent statement made by a witness is

Answer 50

not admissible for its truth even though the statement was made under penalty of perjury; instead, it is inadmissible hearsay

Question 51

even though the witness made the statement under penalty of perjury at her deposition, the Virginia rules do not recognize such a statement as

Answer 51

nonhearsay or a hearsay exception

Question 52

If a statement is in writing, the witness may be cross-examined as to the statement in Virginia without

Answer 52

such writing being shown to the witness.

Question 53

If the intent is to contradict such witness by the writing

Answer 53

her attention must be called to the occasion on which the writing is supposed to have been made before such contradictory proof can be given, but this still does not require the attorney to show the witness the writing.

Question 54

Virginia recognizes a clergy-penitent evidentiary privilege that

Answer 54

belongs to the clergy and not the penitent.

Question 55

pastor, as holder of the clergy-penitent privilege,

Answer 55

can testify in the defendant’s murder trial if he wants to.

Question 56

When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is

Answer 56

not admissible to prove negligence, culpable conduct, a defective product or design, or the need for a warning or instruction.

Question 57

objections must be stated with

Answer 57

reasonable certainty

Question 58

objection if evidence is

Answer 58

admitted

Question 59

offer of proof if evidence is

Answer 59

excluded

Question 60

dont need to renew a challenge after

Answer 60

ruling on admissibility is made by court

Question 61

completeness rule

Answer 61

for partial introduction of evidence, an adverse party may compel introduction of an omitted portion to help explain the admitted evidence

Question 62

judicial notice

Answer 62

the courts acceptance of a fact as true without requiring formal proof

Question 63

instructing jury of judicial notice in civil case

Answer 63

jury must be instructed to accept the noticed fact as conclusive

Question 64

instructing the jury of judicial notice in criminal case

Answer 64

jury must be instructed that it may or may not accept judicially noticed fact as conclusive

Question 65

witnesses who may not be excluded

Answer 65

parties

Question 66

court may permit what kind of witness to remain in court room

Answer 66

expert witness

Question 67

if a witnesses answer makes testimony improper

Answer 67

move to strike

Question 68

exclusion of relevant evidence under 403

Answer 68

if probative value is substantially outweighed by the danger of unfair prejudice-confusing issues, misleading jury, undue delay, wasting time, needless presentation of cumulative evidence

Question 69

character evidence admissible in civil case when

Answer 69

character is an essential element of a claim or defense, and not a means of proving a persons conduct (defamation, negligent hiring or negligent entrustment, child custody)

Question 70

character evidence in criminal case, D’s character by prosecution

Answer 70

cant use character evidence for propensity

Question 71

character evidence in criminal case, D’s character by Defense

Answer 71

D can introduce good character inconsistent with crime charge, if pertinent and in form of reputation/opinion

Question 72

if D opens door, offering evidence of good character, then prosecution can

Answer 72

rebut by attacking D’s character

Question 73

D can introduce reputation/opinion evidence of victims character when

Answer 73

relevant to defense asserted- very limited use of victim sexual conduct

Question 74

virginia only allows character evidence in form of

Answer 74

reputation, cant use opinion

Question 75

character evidence of witness untruthfulness is admissible/relevant to

Answer 75

impeach a witness

Question 76

bad acts cant be used for

Answer 76

propensity

Question 77

bad acts for MIMIC purpose

Answer 77

admissible, prosecution must give written notice before trial to defendant of general nature of MIMIC evidence used, and nonpropensity purpose; no notice requirement in VA

Question 78

habit evidence

Answer 78

persons particular routine reaction to a specific set of circumstances; can be used for propensity

Question 79

impeachment based on

Answer 79

character for unthruthfulness; bias; ability to perceive or testify accurately; inconsistent prior statement; another witness