Evidence Flashcards
Is a chart created by a party based upon review of the opposing party’s voluminous records admissible at trial where the records were available to the opposing party prior to trial?
Yes, the contents of voluminous writings that are otherwise admissible may be presented in the form of a chart as long as the original documents are available to the other party for examination and copying.
Is a treatise admissible as substantive evidence?
Yes, the Federal Rules recognize an exception to the hearsay rule for learned treatises and admit them as substantive evidence if: (i) the expert is on the stand and it is called to his attention, and (ii) it is established as reliable authority.
Reliability of a publication may be established by: (i) the direct testimony or cross-examination admission of the expert, (ii) the testimony of another expert, or (iii) judicial notice.
A defendant is on trial for a murder that occurred during a robbery at the victim’s home. A witness helped the police artist compose an accurate depiction of the defendant. The witness was unavailable at the time of trial and the prosecutor offers the sketch into evidence.
Is the sketch admissible?
No, as hearsay not within any exception. A prior identification can be admissible nonhearsay, and the sketch could be deemed a prior identification by the witness. However, the hearsay exclusion for prior identifications only applies when the declarant is testifying at trial and subject to cross-examination. Here the witness is unavailable; hence, this exclusion does not apply.
A camper sued the manufacturer of thermal underwear, alleging that while he was attempting to stomp out a fire, the camper’s underwear caught fire and burned in a melting fashion up to his waist because it was defective, and that, a half hour later, he suffered a heart attack as a result of the burns he suffered.
A physician hearing the camper testify to the events that occurred is called by the camper and asked whether the camper’s heart attack could have resulted from the burns.
Is his opinion admissible?
The expert’s opinion is admissible. An expert need not have personal knowledge of the facts on which the expert bases an opinion. Under Federal Rule 703, the expert may base an opinion upon facts or data perceived by or made known to the expert at or before the hearing. Federal Rule 705 permits the expert to give the opinion without prior disclosure of the underlying facts or data, although the opposing attorney can inquire into the basis of the opinion on cross-examination. Here, the witness is volunteering the facts on which the opinion is based by answering a hypothetical question. The expert may give an opinion in response to a hypothetical question, as long as the facts assumed in that question can be found by the trier of fact based upon admissible evidence. Since the underlying facts have been introduced in evidence, this opinion is admissible.
