Evidence

Question 1

How to define the competence of a child to testify

Answer 1

The competence of a child depends on his intelligence, his ability to differentiate between truth and falsehood, and his understanding of the importance of telling the truth.

Question 2

Hearsay rule

Answer 2

Hearsay is a statement that the declarant makes at a time other than while testifying at the current trial or hearing (i.e., an out-of-court statement) that is offered to prove the truth of the matter asserted.

Question 3

Present sense impression

Answer 3

A statement describing or explaining an event or condition that is made while or immediately after the declarant perceived it is not excluded as hearsay.

Question 4

Then existing state of mind

Answer 4

to show the declarant’s present intent, motive, or plan

Question 5

Limitations on waiver of attorney-client privilege & work product doctrine

Answer 5

Question 6

Admissibility of expert testimony

Answer 6

Must prove reliable by a preponderance of the evidence

Question 7

Best evidence rule

Answer 7

Question 8

Authenticating Physical Objects

Answer 8

Show by sufficient evidence

Question 9

Forfeiture of hearsay & confrontation objections

Answer 9

Question 10

Preserving evidentiary rulings for appeal

Answer 10

Question 11

Lay witness vs expert

Answer 11

Question 12

Hearsay Exceptions

Answer 12

Question 13

Witness’s prior inconsistent statement

Answer 13

Question 14

What is privileged between Attorney-client

Answer 14

Question 15

Impeachment Evidence

Answer 15

Question 16

Self-authenticating evidence

Answer 16

Question 17

Can lay person testify on first hand experience even when other evidence could be used to established the same fact?

Answer 17

Yes, uncertainty only affect the weight not the admissibility

Question 18

Exceptions of Attorney- client privilege

Answer 18

Question 19

What is in admissible settlement discussion

Answer 19

Question 20

What are the common uses of hypothetical questions

Answer 20

Cannot omit undisputed material facts

Question 21

What is the then existing state of mind hearsay exception

Answer 21

Question 21

What are the factors to determine the probative value of evidence

Answer 21

Question 22

When is a presumption instruction not proper

Answer 22

A presumption is a conclusion that the trier of fact is required to draw upon a party’s proof of an underlying set of facts. Here, if a party established that a letter is properly stamped, addressed, and mailed, there is a presumption that the letter has been received. However, in a criminal case, the prosecution is responsible for proving every element of a crime, and whether the victims received the letters is an element of the crime. Therefore, the judge’s jury instruction was not proper, because it shifted the burden of disproving an element to the criminal defendant

Question 23

The best evidence rule applies when

Answer 23

(i) the document is used as proof of the happening of an event; (ii) the document has a legal effect, such as with a contract or a will; or (iii) the witness is testifying based on facts learned from the writing.

Question 23

How can extrinsic evidence be used to impeach a witness

Answer 23

Although a witness’s character for truthfulness or untruthfulness is always relevant, it can only be proved by either opinion or reputation evidence. Extrinsic evidence (including another witness’s testimony) of specific instances of conduct is inadmissible to prove a witness’s character for untruthfulness. Note that character witnesses may be cross-examined about specific instances of conduct, but no extrinsic evidence is permissible.

Question 24

Present recollection refreshment

Answer 24

A witness may examine any item (e.g., writing, photograph) to “refresh” the witness’s present recollection. The witness’s testimony must be based on the witness’s refreshed recollection, not on the item itself.

Question 25

Confidential marital communications privilege applies when

Answer 25

Communications made between spouses while they were married is privileged if the communications were made in reliance on the sanctity of marriage. The majority view is that the privilege is held by both spouses. Under the majority view, either spouse may assert the privilege and refuse to testify about the communication or prevent the other spouse from testifying. The time for asserting this privilege extends beyond the termination of the marriage. Thus, either party may assert the privilege – by refusing to testify or by preventing the other party from doing so – at any time, even after divorce or the death of one spouse.

Question 26

Prior testimony exception

Answer 26

If a declarant is unable to testify due to death, testimony that he gave as witness at a trial, hearing, or lawful deposition is not excluded as hearsay if the party against whom the testimony is being offered had an opportunity and similar motive to develop the testimony by direct examination, redirect examination, or cross-examination.

Question 27

Excite utterance exception

Answer 27

An excited utterance is a statement made about a startling event or condition while the declarant is under the stress of excitement that it caused. Excited utterances are not excluded from evidence, despite being hearsay. The event must shock or excite the declarant, and the statement must relate to the event.

Question 28

What is a curative admission

Answer 28

When a court erroneously admits evidence, the court may permit the introduction of additional inadmissible evidence to rebut the previously admitted evidence. Known as a curative admission, such additional evidence can be admitted in the court’s discretion when necessary to remove unfair prejudice.

Question 29

Can a victim be party opponent in crim trial

Answer 29

No

Question 29

Character evidence’s use in civil cases

Answer 29

In a civil case, 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.

Question 30

When can a prior inconsistent statement be used substantively for its truth

Answer 30

A prior inconsistent statement made under penalty of perjury at a trial, hearing, or other proceeding, or in a deposition may be admissible to impeach the declarant’s credibility and as substantive evidence.

Question 31

Can a previous out-of court identification be admitted

Answer 31

A previous out-of-court identification of a person after perceiving that person (e.g., a lineup or photo array) is not hearsay and may be admissible as substantive evidence. Even if the witness has no memory of the prior identification, it will be admissible because the witness is subject to cross-examination about the prior identification. Therefore, the victim’s prior identification is an issue of personal knowledge of a witness, subject to cross-examination based on the credibility or trustworthiness of that identification.

Question 32

When can a subsequent change be admitted

Answer 32

Rule 407 provides that evidence of a subsequent change may be admitted for the limited purpose of showing the practicability of making a change.

Question 33

Can a withdrawn or amended pleading or petition be admitted under party opponent

Answer 33

A statement made by a party in a pleading filed in another action can be admissible against the party in the current action as an opposing party’s statement. Although the statement in the pleading of another action is not conclusive evidence of the truth of the matter asserted in the statement, it is nevertheless generally admissible as evidence of the truth of the matter asserted in the pleading.

the subsequent withdrawal or amendment of a pleading does not prevent its use in another proceeding as an opposing party’s statement. It is left up to the party to explain why the pleading was withdrawn or amended.

Question 33

When will evidence of a final judgment of conviction not excluded as hearsay

Answer 33

Evidence of a final judgment of conviction is not excluded as hearsay if the judgment was entered after a trial or guilty plea, the conviction was for a crime punishable by death or imprisonment for more than one year, and the evidence is offered to prove any fact essential to sustain the judgment.

Question 34

Unfair prejudice under Rule 403

Answer 34

Under Rule 403, evidence that is relevant may nevertheless be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

Question 35

can demonstrations and experiments to be performed in the courtroom?

Answer 35

Science experiments are permitted but may be excluded if they will result in an undue waste of time or confusion of the issues.

Question 36

Statement against interest

Answer 36

The general rule for statements against interest made by an unavailable declarant is that a statement qualifies as a hearsay exception if, at the time it was made, (i) it was against the declarant’s pecuniary, proprietary, civil, or penal interest, and (ii) the statement was of a nature such that a reasonable person would not have made it unless she believed it to be true.

a statement that could subject the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement,

Question 37

Does identification of controlled substance require expert with formal training

Answer 37

no, lay witness of personal knowledge

Question 38

Admissibility of previous criminal conviction or bad act

Answer 38

Question 39

Learned treatise hearsay exception

Answer 39

Question 40

Unavailable declarant and confrontation clause analysis

Answer 40

Question 41

Dual use of prior inconsistent statement

Answer 41

Question 42

Then existing physical condition

Answer 42

Question 43

Adoption of statement

Answer 43

But can’t be included as an exhibit unless offered by the opposing party

Question 44

Refreshed recollection vl Recorded recollection

Answer 44

Question 45

When does the dead man’s statute apply

Answer 45

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.

Question 46

Rule of completeness

Answer 46

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.

Question 47

Can a judge question a witness?

Answer 47

a judge is permitted to examine a witness and may do so in order to clarify a witness’s testimony

Question 48

Hostile witness

Answer 48

Leading questions generally are inadmissible on direct examination. However, the federal rules allow leading questions on direct examination in certain situations when it is necessary to develop testimony, such as when the witness is a child, has difficulty communicating due to age or a physical or mental problem, is hostile, is an adverse party, or is associated with an adverse party.

Question 49

Sequestrian rule

Answer 49

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.

Factual witnesses must be excluded upon request

Question 50

Character evidence in civil action

Answer 50

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. There is an exception allowing a party to introduce evidence of his peaceful character in cases in which the defendant is claiming self-defense, but only when there is a dispute as to who was the initial aggressor.

But if admissible all three forms are ok

Question 51

If an evidence is admitted can further evidence be presented about this evidence?

Answer 51

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.

Question 52

How can defendant open the door to character evidence

Answer 52

criminal defendant may introduce evidence of the victim’s character when it is relevant to the defense asserted. If the defendant does so, the prosecution may offer rebuttal evidence of the victim’s good character regarding that trait, and evidence of the defendant’s bad character for the same trait.

Question 53

Impeachment by extrinsic evidence

Answer 53

The adverse party may cross-examine the witness about the conduct, but must take his answer as he gives it.

Question 54

Use immunity vs transaction immunity

Answer 54

It prevents the prosecution from using the witness’s statements (“use”) or any evidence derived from those statements (“derivative use”) against the witness in a criminal 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.

However, can be used for civil court

transaction full immunity

Question 55

Dying declaration

Answer 55

A dying declaration only qualifies as a hearsay exception if (i) the statement is made by an individual who believes she is dying, (ii) the individual believes that her death is imminent, and (iii) the statement pertains to the cause or circumstance of her death. The statement made by this victim likely would meet this standard. However, under the Federal Rules, a dying declaration is admissible only in homicide prosecutions and civil actions.

Question 56

Double hearsay

Answer 56

Question 57

Psychotherapist-patient privilege

Answer 57

Question 58

Identification of voice

Answer 58

a voice can be identified by any person who has heard the voice at any time, including one made familiar solely for the purposes of litigation.

Question 59

Impeachment through juvenile adjudication

Answer 59

The defendant in a criminal case who testifies on his own behalf may not be impeached by a juvenile adjudication to show that the defendant is untruthful.

Question 60

Statement against interest only applies when

Answer 60

declarant unavailable

Question 61

Under Federal Rule of Evidence 801(d), a prior statement of identification, which otherwise would qualify as hearsay, is treated as non-hearsay. Under Rule 801(d)(1)(C), a previous out-of-court identification of a person after perceiving that person is admissible as substantive evidence, but only if

Answer 61

the witness testifies at the present trial or hearing and is subject to cross-examination concerning the identification.

Question 62

What happens after the defendant opens the door to character

Answer 62

Although the prosecution generally cannot introduce evidence of a defendant’s bad character, the defendant can make his character an issue in the case by offering evidence of his good character. When the defendant “opens the door” in this way, the prosecution is free to rebut the defendant’s claims by attacking the defendant’s character. In introducing evidence as to the defendant’s character, the prosecution is generally limited to the same type of evidence that the defendant offers. However, on cross-examination, the prosecution may question a defendant’s character witness about specific instances of the defendant’s conduct.

Question 63

Impeaching a witness with prior convictions?

Answer 63

A witness may be impeached with evidence of a conviction for a felony that is less than 10 years old. If the crime does not involve dishonesty or false statement, the conviction of a witness who is not a criminal defendant will be excluded only if the party objecting to the impeachment shows that its probative value is substantially outweighed by its prejudicial effect. I

Question 64

Self authenticating documents

Answer 64

The court will consider a number of items of evidence to be self-authenticating, meaning that they do not require extrinsic evidence of authenticity in order to be admitted. These include certified copies of public records, trade inscriptions (e.g., labels affixed in the course of business that indicate ownership), and business records. Generally, the proponent of a self-authenticating document is not required to give an adverse party advance notice of the intent to introduce the document. The proponent of a business record must, however, give an adverse party reasonable written notice prior to the trial or hearing of the intent to offer the record and must make the record available for inspection so that the party has a fair opportunity to challenge it.

Question 64

the victim’s past sexual behavior

Answer 64

The Federal Rules establish a privilege that protects victims of sexual offenses. The rule states that evidence offered to prove that an alleged victim engaged in other sexual behavior and evidence offered to prove an alleged victim’s sexual predisposition is not admissible, subject to certain exceptions

One of the exceptions to the general rule stated above is that in a criminal case, evidence of a victim’s past sexual conduct is admissible to show the victim’s past sexual behavior with the defendant in order to prove consent. The victim’s past sexual behavior in general cannot be used to prove consent; only the victim’s past behavior with the defendant is relevant.

(i) to prove an alternate source of semen or injury, (ii) when the constitutional rights of the defendant require admission of the evidence, (iii) in civil cases, when the probative value substantially outweighs danger of harm to the victim, and (iv) in civil cases, when the victim herself has placed her reputation in controversy.

Question 65

bases of expert’s opinion testimony and their admissibility

Answer 65

Question 66

Family records excepted from hearsay

Answer 66

Question 67

can the court considered privileged evidence in making its ruling about admissibility？

Answer 67

In determining a preliminary question, such as the existence of a privilege, although the court is not generally bound by the rules of evidence, the court cannot consider privileged evidence.

Question 68

Prior consistent statement admission

Answer 68

A prior consistent statement may be admissible in two situations. First, a prior consistent statement made before the declarant had reason to fabricate the statement may be admissible to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in testifying. Second, a prior consistent statement may be admitted to rehabilitate the declarant’s credibility as a witness when attacked on another ground.

Question 69

Impeachment evidence pardoned crime

Answer 69

Question 70

Exception to the psychotherapist-patient privilege

Answer 70

Question 71

compromise offers & negotiations

Answer 71

Question 72

Judicial notice of adjudicative facts

Answer 72

Question 73

Test for competency of witnesses

Answer 73

Question 74

Does the business records exception apply to illegal actvities?

Answer 74

Question 75

court’s control over witness examination & presentation of evidence

Answer 75

Question 75

FRE doesn’t apply

Answer 75

Question 76

Routine practice

Answer 76

Question 77

ADA accommodation under fair housing act

Answer 77

Do not apply if less than 4 units

Question 78

Void deed and then BFP

Answer 78

Question 79

Right to remove fixtures v. chattels

Answer 79

Question 80

Does a deed in lieu eliminate junior interest?

Answer 80

No

Question 81

Title insurance transfer

Answer 81

Question 82

Real estate broker’s duty to disclose

Answer 82

Question 83

Fair notice of the defense’s intent to introduce the stuff to evidence to the prosecution required?

Answer 83

t. The prosecution must provide reasonable notice of the general nature of such evidence that the prosecution intends to offer at trial. The defense is not required to give the prosecution the same notice.

Question 84

Compelling a spouse to testify?

Answer 84

The general rule is that the spouse of a criminal defendant may not be called as a witness by the prosecution. A married person may not be compelled to testify against her spouse in any criminal proceeding, regardless of who is the defendant. However, there is an exception when one spouse is charged with a crime against the other spouse or the children of either.

Question 85

Impeachment with inconsistent statements

Answer 85

Question 86

Expert opinion on ultimate issue

Answer 86

Question 87

Common scheme arises after some of the lots have been sold

Answer 87

Question 88

Methods of impeaching witnesses

Answer 88

Question 89

Preservation of error

Answer 89

Question 90

Statements in learned treatises hearsay exception

Answer 90