Evidence

Question 1

If a witness uses a writing to refresh their memory before testifying, what may the opposing party do?

Answer 1

If the witness does refresh their memory with the writing before testifying, the imposing party may be allowed to inspect the document if justice so requires

Question 2

Evidence of prior crimes are bad acts and are generally improper character evidence and inadmissible unless

Answer 2

They are relevant non-character purposes, such as absence of mistake or accident

Question 3

Testimony, deposition or written statement of a party opponent without accounting for the original documents absence is an exception to what rule

Answer 3

The best evidence rule

Question 4

The fifth amendment privilege against self-incrimination prohibits the government from compelling a defendant to provide incriminating testimonial communications - not real or physical evidence. Does a request to have a defendant walk to evidence limping violated the fifth amendment?

Answer 4

NOPE

Question 5

At a jury trial, when factual conditions are established (all originals are lost of destroyed), the jury determines what?

Answer 5

Whether:
1) an asserted document ever existed
2) another document produced at a hearing or trial is the original
OR
3) other evidence of content accurately reflects the content

Question 6

True or False: Evidence of a withdrawn guilty plea can be used against a Defendant.

Answer 6

False. Evidence of statements made during settlement or plea negotiations are generally inadmissible against a defendant - this includes a guilty plea that is later withdrawn.

Fed. R. Evid. 410(a)(1)

Question 7

A party may be impeached by establishing a bias or self-interest motivating

Answer 7

The witness to testify falsely.
(This applies even in a molestation of a child case)

Question 8

When are attorney-client communications not privileged

Answer 8

1) this there is a third party present
2) relevant to an ongoing dispute between the attorney and the client
3) crime-fraud
4) deceased client

Question 9

When state substantive law is determinative of the existence of a claim or defense under the Erie doctrin, state law also governs

Answer 9

the effect of a presumption related to a claim or defense

Question 10

Can illegal documents (ledger of drug activity) be business records?

Answer 10

Yes.

Question 11

What is a business record?

Answer 11

an exception to hearsay for records of regularly conducted business activity and are:
1) made at or near the time of the recorded event (or act, condition, opinion, or diagnosis)
2) made by or based on information from someone with personal knowledge of that event and
3) made and kept as a regular practice in the course of regularly conducted business activities.

Question 12

Fill in the Blanks

A trial court has __________ ___________ to exercise ___________ __________ over the mode and order of ________ ____ and __________ __________.

Answer 12

a trial court has broad discretion to excerise reasonable control over the mode and order of examining witnesses and presenting evidence.

Question 13

True or False

the rules of evidence apply in grand jury proceedings

Answer 13

FALSE

Question 14

Under FRE 408 compromise offers and negotiations made in a civil dispute and ____________ in a subsequent criminal procceeding.

Answer 14

Inadmissible, unless the negotiations involved a government regulatory, investigative or enforcement agency

Question 15

Do the rules of evidence apply in probation revocation proceedings?

Answer 15

NOPE

Question 16

Does the statement against interest exception apply to available witnesses?

Answer 16

NO - it is only for declarants who are unavailable.

Question 17

What are non-hearsy statements?

Answer 17

1) prior statements: declarant must be available and can be inconsistent, consistent, or indefication statements
2) opposing party statement - made by a party to current litigation and can be judicial admission, adoptive admission, vicarious statements

Question 18

What hearsay exceptions require the witness to be unavailable

Answer 18

1) statements by witness who is unavailable through wrong doing of propenant
2) former testimony in which party against whom the testimony is offered had an oppurtunity and similar motive to develop testimony
3) dying declaration (believes death is imminent and pertains to cause/circumstances of death, does not acutally need ot die, only for homicide and civil cases)
4) Statement against interest - against pecuniary interest at time made and reasonable person would not have made it unless true
5) Statement of personal/family history
6) Statement against party that caused declarant’s unavailability

Question 19

What are the hearsay exceptions in which availability is immaterial?

Answer 19

1) present sense impression
2) excited utterance
3) Statement of mental, emotional, or physical condition
4) Statement made for medical diagnosis/treatment
5) Recorded recollection
6) Business records
7) public records
8) learned treatises
9) judgmeent of previous conviction

Question 20

What is the Residual exception

Answer 20

catchall exception for statement not otherwise covered by the FRE.

Statement must be (1) supported by sufficient guarantees of trustworthiness, and (2) more probative than any other evidence that the proponent can obtain through reasonable efforts

Question 21

What is the difference between intrinsic v extrinsic evidence?

Answer 21

Intrinsic - testimony used to discredit witness elicited only from that witness
Extrinsic - Evidence used to discredit witness from any source other than witness’s own testimony

Question 22

What kind of evidence can be used to impeach a witness’s testiomny on a material issue with a prior inconsistent statement?

Answer 22

Intrinsic - examining the witness about the statement

Extrinsic - if (1) witness has the oppurtunity to explain or deny and the opposing party can question the witness about the statement, or (2) just so requires

Question 23

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

Answer 23

shoing the practicability of making a change

Question 24

Can counsel object as to a leading question counsel as part of their case-in-chief called the opposing party who after direct exam was then subject to cross-exam by their own counsel?

Answer 24

Yes.

Question 25

Does attorney client privilege apply when two defendants (co-clients) are now adverse to each other?

Answer 25

So maybe no it if was for a third party hired by the attorney such as a stenographer

Themis MBE Evidence question 7504

Question 26

Does the former testimony (prior inconsistent statements) exception apply if the former testimony was in front of a grand jury?

Answer 26

NOPE

Question 27

Does prior identification of a defendant/person require a witness to testify?

Answer 27

YES

Question 28

Does the marital communication doctrine apply even after divorce

Answer 28

In a majority jurisdiction, yes

Question 29

Are public records self-authenticating?

Answer 29

No

Question 30

How do you authenticate a public record?

Answer 30

through evidence that the document
1) was recorded or filed in a public office as authorized by law or
2) is from the office where items of that kind are kept

Question 31

Evidence of a victim’s other sexual behavior or predisposition is inadmissible in a criminal case unless:

Answer 31

1) the behavior is offered to prove another was a perpetrator
2) it was with respect to and is offered by the defendant to prove consent or by the proescutor and/or
3) exclusion would violate the defendant’s constitutional rights

Question 32

Can a defendant agree to waive the evidentiary rule against the admissibility of plea negotiations?

Answer 32

Yes, if the waiver is knowingly and voluntarily agreed too

Question 33

Does the character evidence exception allowing a criminal defendant to introduce testimony regarding a pertinent character trait apply in civil cases?

Answer 33

No, character evidence may only be offered after it has been attacked

Question 34

Does a finding that a witness is an expert preclude opposing party from inquiring into matters that affect the weight of the witness’s testimony?

Answer 34

NO

Question 35

Can reputation in the community be appropriate character evidence?

Answer 35

Yes