Evidence

Question 1

What are ways Va allows introduction of character evidence in form of reputation?

Answer 1

For impeachment or substantive purposes

Question 2

Virginia does not permit the introduction of character evidence in the form of

Answer 2

Opinion testimony for substantive or impeachment

Question 3

Admissible or no: An heir or devisee’s testimony about a communication or transaction with the decedent that is considered adverse to the estate is admissible if

Answer 3

testimony is sufficiently corroborated

Question 4

When there is a non-constitutional evidentiary ruling that is erroneous, the Virginia appellate courts will characterize it as harmless error if

Answer 4

All parties have had a fair trial

Question 5

Matter outside of marriage–While a spouse cannot be compelled to testify against his or her spouse in a criminal case, the spouse can

Answer 5

Choose to testify

Question 6

A person may refuse to disclose, and may prevent anyone else from disclosing, any confidential communication between himself and his spouse during their marriage, regardless of whether

Answer 6

he is married to that spouse at the time he objects to disclosure.

Question 7

In impeaching a witness who is THE criminal defendant or THE party in a civil case, Virginia generally allows only the ___ and the ____, NOT THE ____or ___

Answer 7

the fact of a felony conviction or a misdemeanor involving moral turpitude and the number of convictions, not the Name and nature of the crime

Question 8

While a juror generally may not testify about any statement made or incident that occurred during the jury’s deliberations, Virginia recognizes that a juror may testify as to one or more statements made by a juror during trial that exhibited

Answer 8

Over racial/national origin bias tending to show that a racial/national origin stereotype or animus was a significant motivating factor in the juror’s vote and casting serious doubt on the fairness and impartiality of the jury’s deliberations or the verdict.

Question 9

a witness’s bias or interest is always relevant to the credibility of his testimony, and consequently, a witness may be

Answer 9

impeached on that ground.

Question 10

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

Answer 10

Opinion testimony

Question 11

Admissible or no: a prior inconsistent statement made by a witness made under penalty of perjury

Answer 11

Not admissible for its truth

Question 12

clergy-penitent evidentiary privilege belongs to

Answer 12

The clergy, not the penitent.

Therefore, pastor, as holder of the clergy-penitent privilege, can testify in the defendant’s murder trial if he wants to.

Question 13

Adherence to VA Rules of evidence (except privileges) is not mandatory in administrative and criminal proceedings other than

Answer 13

i) trial
ii) preliminary hearings
iii) sentencing proceedings before a jury

Question 14

Objection must be stated with

Answer 14

“reasonably certainty” Thus, cannot merely state they object but have to give a reason or else wont be preserved for appeal

Question 15

When parties have had a fair trial, non constitutional, erroneous evidentiary ruling is considered

Answer 15

harmless when substantial justice has been reached

Question 16

What must ct do whenever it becomes necessary to ascertain the law of another jurisdiction

Answer 16

take judicial notice whether or not specifically pleaded

In taking judicial notice, ct must in criminal case and may in civil consult any appropriate source and may consider any other info, evidence or argument offered on the subject

Question 17

Is a named party who is an individual and one officer or agent of each party that is a public or private corporation, partnership, association, governmental agency, or other entity are not subject to exclusion of witnesses rule?

Answer 17

No

neither is witness of crime unless ct concludes their presence would impede the conduct of a fair trail

Question 18

When expert witnesses are to testify in the case, the court may, at the request of all parties, allow

Answer 18

one expert for each party to remain in the courtroom

Question 19

Exclusion of witness: Cases dealing w distribution of marital property or determination of child or spousal support

Answer 19

ct may upon any party’s motion allow one expert witness for each party to remain in the ct room throughout the hearing

Question 20

What kind of law determines the effect of a presumption in a civil case

Answer 20

federal law in any civil action or proceedings as to which federal law supplies the rule of decision

Question 21

VA only permits proof of character evidence by

Answer 21

reputation, not opinion testimony

Question 22

Character trait is an essential element of charge, claim, defense, proof can be made by

Answer 22

specific instances of conduct of such person

Question 23

Does evidence of other crimes have to bear an exact resemblance to the crime on trial as to constitute a signature?

Answer 23

NO. sufficient if the other crimes bear a SINGULAR STRONG RESEMBLANCE to the offense charged…

Question 24

Does prosecution neeed to notify D about their intent to use specific bad act evidence?

Answer 24

No

Question 25

Is relevant evidence of repeated physical and psychological abuse of the accused by the victim admissible?

Answer 25

yes in any personal injury, death or attempted subject to general rules of evidence

Question 26

When can a juror testify?

Answer 26

When during trial another juror made one or more statements exhibiting overt racial/national origin bias tending to show that a racial/national origin stereotype or animus was a significant motivating factor in juror’s vote and casting serious doubt on fairness and impartiality of jury’s deliberations or the verdict

Question 27

VA deadman statute

Answer 27

no judgment may be entereded against a person who is incapable of testifying based on the uncorroborated testimony of an adverse party (doesnt apply to D’s who made themselves available via self inflicted injuries)

Question 28

Can entries, memoranda, and declarations by the party so incapable of testifying made while he was capable, relevant to the matter in issue be received as evidence?

Answer 28

Yes

Question 29

Rule Re Impeaching w Reputation/Opinion Testimony

Answer 29

can only impeach by reputation testimony relating to truthfulness but not opinion testimony as to reputation

Question 30

Can specific instances of conduct of a witness be used to attack credibility of a witness?

Answer 30

No

Question 31

What is the time limit to use convictions to impeach?

Answer 31

There is none

Question 32

How can you use a Felony involving moral turpitude to impeach a criminal defendant

Answer 32

only using the fact of a felony conviction or a misdemeanor involving moral turpitude and the number of convictions, not the name and nature of the crime, except for perjury.

Question 33

Can you use name and nature of crimes re moral turpitude to impeach other criminal witness

Answer 33

yes

Question 34

Is a party who calls an adverse witness allowed to impeach that adverse witness with a prior conviction

Answer 34

no

Question 35

How to impeach via prior inconsistent statement

Answer 35

counsel must call statement to attention of witness prior to effecting the impeachment

Question 36

Can you impeach via sttement in writing w/o calling writing to attention of that party?

Answer 36

Yes

Question 37

If the intent is to contradict a witness by the writing then

Answer 37

must call witness’s attention to the writing first…if witness denies making it or does not admit its execution, wriying must be shown to the witness…If witness admits its genuineness, witness shall be allowed to make an explanation of the writing…ct may require production of writing for its inspection at any time

Question 38

What kind of witness can you Impeach w prior inconsisent statement?

Answer 38

adverse witness

Question 39

Showing of reliability of expert witness’s opinion

Answer 39

is more flexible than federal rules

Question 40

Can experts render opinions as to ultimate facts at issue

Answer 40

yes

Question 41

Can expert in insanity case testify as to D’s diagnosis of mental disease and effect of disease

Answer 41

yes but cant say explicitly that D lacked capacity to understand wrongfulness of his actions

Question 42

Evidence of D’s mental condition on issue of mens rea is admissible if it ____ and it is ____

Answer 42

i) shows that D did not have the required intent and

ii) it is otherwise admissible under rules of evidence

Question 43

When Expert’s Opinion is on Mens rea they must provide

Answer 43

i) WRITTEN REPORT of WITNESS’S OPINIONS and their bases or a written summary of the expected testimony and

ii) EXPERT’S QUALIFICATIONS and contact info

Question 44

in civil cases in Virginia, an expert may testify in terms of opinion or inference and give the reasons for such opinion or inference without prior disclosure of the underlying facts or data, unless

Answer 44

court provides otherwise

Question 45

Expert in criminal cases can give their expert opinion by

Answer 45

expert’s testimony or set forth in a hypothetical question

Question 46

Expert opinion based on inadmissible facts: civil

Answer 46

expert can rely on inadmissible facts so long as they are facts of type normally relied on by others in the particular field of expertise in forming opinions and drawing inferences

Question 47

Expert Opinion based on inadmissible facts: Criminal

Answer 47

experts must generally base their opinions on facts in evidence or on facts personally known or observed by expert

Question 48

Admissible? Evidence of polygraph exam

Answer 48

never

Question 49

Copies of a Minor’s school record are admissible so long as

Answer 49

they are properly authenticated as true and accurate copies…

However, subject info must be redacted from the records prior to admission of evidence

Question 50

How to authenticate record of regularly conducted activity?

Answer 50

by custodian of record or other qualified witness…Va also alllows gthe record to be certified by witness testimony or by a combo of witness testimony and a certification

Question 51

Medical Bills Are rebuttably presumed authentic upon

Answer 51

P identifying the original bill or an authenticated copy and

the P’s testimony i) identifying the health care provider, ii) explaining the circumstances surrounding his receipt of the bill, iii) describing the services rendered and iv) stating that the services rendered in connection w treatment for the injuries received in the event giving rise to the action

Question 52

How can Parties in personal injury suits present evidence re extent, nature and treatment of the injury, the examination of the person so injured and costs of such treatment by

Answer 52

1. Reports from the health care provider; or

2) Record or bills of a hospital or similar medical facility where treatment was performed

Question 53

in civil case of damges over 2,500, evidence of automobile damage and cost to repair may be admitted by

Answer 53

ITEMIZED WRITTEN ESTIMATE OR APPRAISAL

BUT other party must consent, or unless a true copy thereof is mailed or delivered to the adverse party not less than seven days prior to trial.

Question 54

For a recorded phone call to be admissible in civil proceeding, either

Answer 54

i) all parties must have been aware convo was being recorded or

ii) the recorded portion contains admissions to actions that would constitute criminal conduct which is the basis of the civil action, one of the parties was aware of the recording, and the proceeding is not one for divorce, separate maintenance or annulment of marriage

Question 55

Best evidence only applies to

Answer 55

writings… counsel

Question 56

Copies of business records made or received in ordinary course of business are admissible to the same extent as original regarless of whether

Answer 56

original is still in existence

Question 57

Spousal immunity: neither spouse may be compelled to testify for the other except in prosecution for

Answer 57

i) an offense committed by one spouse against the person or property of the other spouse or against the minor child of either

ii) forgery by one spouse of the other spouse’s signature or

iii) sexual assualt, incest or abuse of children

Question 58

In civil cases, a person may refuse to disclose, and may PREVENT anuone else from disclosing any confidential communication between himself and his spouse during their marriage, regardless of whether

Answer 58

he is married to that spouse at the time he objects to disclosure

Question 59

Spousal privilege cannot be invoked in

Answer 59

proceeding where spouses are adverse parties or where either spouse is charged w a tort against the person or property of the other or against the minor child of either spouse

Question 60

Is the identity and location of persons having knowledge of relevant facts subject to discovery?

Answer 60

Yes…

However, a party may not discover the identity of specific sources of info that an opposing party may have consulted. protected by work product

Question 61

Physician patient priovilege is only available in

Answer 61

civil proceedings except where physical or mental condition of patient is at issue

Question 62

Psychotherapits patient privilege

Answer 62

except w consnet of the patient, no licensed, counselor, social worker, or psychologist can be required to testify re info communicated in confidence and entrusted to him in a professional capacity….

Question 63

Exception to pscyhotherapist privilege

Answer 63

child abuse and when client’s physical or mental condition is at issue

Question 64

Can party’s exercise of privilege against self incrimination be used against them?

Answer 64

No except in domestic relations cases, if a party or witness refuses to answer questions about potentially adulterous conduct on ground that the testimony may be self incriminating, the trier of fact may draw an adverse inference against that party or witness

Question 65

Clergy privilege

Answer 65

o regular priest, minister, rabbi, or accredited practitioner over the age of 18 of any religious organization or denomination can be required to give testimony or relinquish documents or notes that would disclose confidential communications made to him in a professional capacity by a person seeking spiritual counsel.

Question 66

Clergy privilege only belongs to

Answer 66

clergy member and not comminicator, so only clergy member can invoke or waive privilege

Question 67

Accountant-client privilege

Answer 67

not recognized in VA

Question 68

Professional journalist privilege protects

Answer 68

the identity of the source of information obtained under a promise of confidentiality during a newsperson’s pursuit of journalism is privileged.

Question 69

A court may compel a newsperson to testify about or disclose information re journalist privilege only if the court finds, after notice and opportunity to be heard, that:

Answer 69

i) info is necessary to prove a material issue in an administrative or criminal proceeding

ii) info is not obtainable from any alternative source

iii) Commonwealth exhausted all reasonable methods for obtaining the info from all relevant alternative sources; and

iv) there is an overriding public interest in disclosure, including the prevention of imminent bodily harm or death

Question 70

Evidence existing before start of compromise negotiations cannot be exlcuded from evidence merely bc

Answer 70

the evidence was disclosed or discussed during the negotations

Question 71

Is plea of nolo comtendre admissible in subsequent civil case

Answer 71

yes if it arises from STO

Question 72

Evidence of D’s prior conviction for other sexual offenses is admissible to prove

Answer 72

Any relevant matter

comm must provide d w notice of intent to use such evidence at least 14 days before trial and copies of certified copies of final orders

Question 73

Is witness’s prior inconsistent statement treated as non hearsay or under hearsay exception?

Answer 73

No

Question 74

va PERMITS USE OF A WITNESS’S prior consistent statements for rehabbilitation but it is not considered

Answer 74

nonhearsay or under hearsay exception

Question 75

Hearsay exception: Prior statement of identification is admissible so long as

Answer 75

declarant testifies at trial or hearing and is subject to cross exam concerning the statement

Question 76

Admission by party oppoenent

Answer 76

treated as hearsay exception rather than nonhearsay and uses

Question 77

Conclusive Admissions

Answer 77

admissions made by an opposing party in the current judicial proceeding may not only be admissible, but also have conclusive effect. However, to be conclusive they must be unequivocal

Question 78

adoptive admission may be express or by

Answer 78

silence. But when adoption is express prerequisites yo finding an adoption by silence are not required. Instead, the trial ct need only determine tyhat there are sufficient foundational facts from which the jury could infer that declarant heard, understood and acquiesced in statement

Question 79

Statement Against Party That Caused Declarant’s Unavailability

Answer 79

Va does not recognize this hearsay exception

Question 80

Hearsay exception: Absence of Entries in Public Records and Reports

Answer 80

allows gov officer’s affidavit that after a diligent search, no record or entry of such record could be found to exist to be admissible as evidence that the gov has no such record or entry.

Question 81

For civil cases, if the statement is to be introduced through an expert witness on direct examination, copies of the specific statements must be designated as

Answer 81

LITERATRURE to be introduced and provided to opposing party 30 days before trial unless otherwise directed by the Ct..

If a statement has been so designated, then the expert need not have relied on the statement at the time of forming his opinion in order to read the statement into evidence during direct examination.

Question 82

Can a crash investigation report prepared for litigation be considered a learned treatise for purposes of the learned treatise rule

Answer 82

no

Question 83

In criminal cases, if an expert witness acknowledges on cross-examination that a published work is a standard authority in the field, an opposing party may

Answer 83

ask whether witness agrees or disagrees w statements in the work….

such proof can be received soley for immpeachment w respect to expert’s credibility

Question 84

Admissible or no: In a civil action, evidence of a guilty plea or a plea of nolo contendere for a criminal offense or a traffic infraction that arose out of the same occurrence on which the civil action is based

Answer 84

Yes

However, does not conclusively establish the truth of the underlying facts on which it was rendered.

Question 85

For copy to be admissible, best evidence rule requires that

Answer 85

Evidence that the original was not lost or not available. There must be evidence that the copy was made in the regular course of business and that the person proffering it was the custodian of record or there was a certificate that the custodian had custody of the original

Question 86

Judicial notice

Answer 86

ct may take judicial notice of matters that are common knowledge or capable of determination by sources whose accuracy cant be disputed.

Question 87

Cts may take judicial notice of

Answer 87

governors or judicial signatures on official documents

Question 88

Judicial notice re laws of other states

Answer 88

judges may take judicial notice of laws of other states whether specifically pled or not and that in doing so ct may consult w appropriate document or publication

Question 89

Voluminous writing rule

Answer 89

summaries may be admitted when contents of a voluminous writing cannot be adequately examined in court.

Summary must be made available to other parties for examination at a reasonable time and place but party must object if they didnt receive it. Ct may order they be produced in court

Question 90

Evidence of settlement negotiations/offers

Answer 90

Conduct or any statements made in settlement negotiations are inadmissible to prove or disprove the VALIDTY OR AMOUNT OF DISPUTED CLAIM or to IMPEACH by a prior inconsistent statement or a contradiction

Question 91

Statements made in settlements

Answer 91

party’s are prohibited from admitting evidence concerning statements made during settlement compromise or negotations…particularly those promising, offering a valuable consideration in compromising or attempting to compromise the claim at issue where such statements are offered to prove or disprove the validity or amount of a disputed claim

Question 92

Otherwise admissible evidence that existed before commencement of compromise negotations

Answer 92

not excluded merely bc such evidence was disclosed, produced or discussed by a party during negotiations

Question 93

Hearsay

Answer 93

out of court statement not made by the person testifying offered for the truth of the matter asserted and is inadmissible subject to certain exceptions.

Question 94

Excited Utterance

Answer 94

statement made as a result of a startling event and that is made while the declarant is still under the stress of the event and under circumstances negating deliberation.

Question 95

What must ct first do when hearsay is offered

Answer 95

authenticate or identify the declarant

Question 96

Can nonverbal conduct be considered hearsay?

Answer 96

Yes when intended as an assertion

Question 97

Admissibility of a video requires

Answer 97

authentication by preponderance

Question 98

Is evidence of a specific prior act admissible to show the person acted in accordance w that character on a particular occasion?

Answer 98

No

Question 99

Evidence of a person’s prior conduct (e.g. other crime, wrongdoing, or act) is admissible for other purposes such as proving

Answer 99

motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident

Question 100

Under the MIMIC evidence rule, D’s bad act may be introduced for any purpose so long as that purpose is not to prove that

Answer 100

bc D had a propensity to commit crimes, D committed the charged crime

Question 101

Does prosecution need to provide D w advance notice of their intent to use specific bad act evidence?

Answer 101

No

Question 102

Character evidence is adimissible as evidence in a civil case when it such character is an

Answer 102

essential element of a claim or defense

Question 103

When character evidence is an essential element of a claim or defense in a CIVIL or CRIMINAL CASE, it may be proven by use of

Answer 103

specific instances of conduct, as well as testimony about person’s reputation

Question 104

Can specific instances of conduct be used to attack CREDIBILITY of witness

Answer 104

no

Question 105

Witness’s prior statement that is inconsistent w witness’s testimony may be used to

Answer 105

impeach witness

Question 106

Extrinsic evidence

Answer 106

evidence other than witness’s own testimony

Question 107

Extrinsic evidence may be introduced only if

Answer 107

witness is given opportunity to explain or deny the statement and opposing party is given opportunity to examine witness about it….

witness’s opportinity to explain or deny statement need not take place b4 the statement is admitted into evidence

Question 108

Witness is qualified as an expert by

Answer 108

knowledge, skill, experience, training or education

Question 109

Can expert’s in civil cases render opinions as to whether D had requisite state of mind? (ultimate issue)

Answer 109

Yes but not in Criminal cases

Question 110

Before it is admitted, all tangible evidence must be

Answer 110

authenticated

Question 111

To authenticate an item, propent must produce sufficient evidence supporting a finding that thing is

Answer 111

what proponent claims it is

Question 112

Self authenticating items

Answer 112

i) public documents bearing gov seal and signature

ii) certified copies of public records

iii) official publications issued by a public authority

iv) newspapers and periodicals

v) trade inscriptions

vi) notarized documents

vii) commercial paper

viii) any doc, signature, or other item declared by fed statute to be authentic

ix) records of regularly conducted activity

Question 113

Best evidence rule requires that

Answer 113

the original writing be produced to prove the contents of a writing, recording or photograph including electronic documents, x-rays and videos

Question 114

Best evidence rule only applies when

Answer 114

the contents of the writing are at issue or a witness is relying on the contents of the document when testifying

Question 115

Original is not required and copy may be admitted if

Answer 115

i) original is lost or destroyed and not by proponent acting in bad faith

ii) original cannot be obtained by any available judicial process;

iii) party against whom original would be offered a) had control of the og, b) was at put on notice that og would be subject of proof at trial or hearing, and c) failed to produce it at the trial or hearing

iv) writing, recording or photo is not closely related to a controlling issue

Question 116

Public records may be proved by a

Answer 116

certified copy rather than the original

Question 117

Copies of Business records

Answer 117

copies of records made in ordinary course of business are admissible to same extent as the original regardless of whether original is still in existence

Question 118

Spousal privilege comprises of two distinct privileges

Answer 118

spousal immunity and confidential marital communications

Question 119

Spousal immunity

Answer 119

spouse of a criminal D may not be called as a witness by the prosecution nor may a married person be compelled to testify against his spouse in any criminal proceedings

Question 120

Confidential marital communications

Answer 120

communication made between spouses while married is privileged

Question 121

Exception to spousal immunity

Answer 121

i) offense committed by one spouse against another

ii) forgery by one spouse of other’s signature

iii) sexual asssault, incest or absuuse of children

Question 122

Can D prevent spouse from voluntarily testifying against him?

Answer 122

no

Question 123

Crime/fraud exception to Work Product Doctrine: if documents were prepared for purpose of furthering an unlawful act

Answer 123

crime fraud exception removes any protection from discovvering hat work product

Question 124

Is physician patient privilege/psychotherapist available in criminal proceedings?

Answer 124

no

Question 125

Phsyician patient privilege: what is it and who holds the privilege?

Answer 125

covers communications for purpose of obtaining medical treatment…. only PATIENT holds privilege

Question 126

Can a corporation assert 5th amendment right against self incrimination?

Answer 126

NO

Question 127

Can an opposing party in a civil case argue to jury that they should draw a negative inference from D invoking 5th amendment

Answer 127

NO, except in domestic relation cases where party invokes 5th as to adulterous behavior

Question 128

Is evidence re plea negotiations admissible in criminal/civil cases?

Answer 128

No except pleas of nolo contendre are admissible in subsequent civil case arising from STO

Question 129

Prior Consistent Statement is admissible to

Answer 129

i) rebut express or implied charge that Declaranat recently fabricated it or acted from a recent improper influence or motive to testify only if it was made before the declarant had reason to fabricate or the improper influence arose; to rehabilitate declarant’s credibility as a witness when attacked on another ground

Question 130

Prior statement of identification

Answer 130

previous out of ct identification of a person after perceiving that person is a hearsay exception

Question 131

Statement by Opposing party

Answer 131

is a hearsay exception

Question 132

Adoptive Admission

Answer 132

Statement of another person that a party expressly or impliedly adopts as his own

Question 133

Silence in response to a statement is considered an adoptive admission if

Answer 133

i) the person was present and heard and understood the statement

ii) person had the abillity and opportunity to deny the statement; and

iii) reasonable person similarly situated would have denied it

(not applicable to post arrest miranda warnings)

Question 134

An unavailable declarant is a person who

Answer 134

i) is exempt on grounds of privilege

ii) refuses to testify despite a ct order to do so

iii) lacks memory of subject matter of statement

iv) is unable to testify due to death, infirmity, or physical or mental disability

v) is absent and cannot be subpoenaed or otherwise made present